Supreme Court: The bench of Justice R. Subash Reddy and Hrishikesh Roy*, JJ has held that in a declaratory suit, where ownership over coparcenary property is claimed, the plaintiff cannot be subjected to the DNA test against his wishes.
“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”
The Court explained that DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test.
The Court was deciding the case where, in a declaratory suit for ownership over coparcenary property, the plaintiff had already adduced ‘enough’ documentary evidence to prove relationship between the parties. The Court noticed that in such cases, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein.
“The possibility of stigmatizing a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy.”
The Court held that in such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence.
It was, hence, held that the respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.
Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449
DNA test is not to be directed as a matter of routine but only in deserving cases. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.
Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633
The discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”.
Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365
In the said case the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, it was held that when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court.
[Ashok Kumar v. Raj Gupta, 2021 SCC OnLine SC 848, decided on 01.10.2021]
For appellant-plaintiff: Advocate Sunieta Ojha
For respondent – defendants: Senior Advocate Rameshwar Singh Malik
*Judgment by: Justice Hrishikesh Roy