IN THE HIGH COURT OF MADHYA PRADESH A T J A B A L P U R

BEFORE

HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE 22nd OF JUNE, 2023

MISC. PETITION No. 1431 of 2019

BETWEEN:-

• 1. SIYARANI W/O LATE BALIRAM MISHRA, AGED ABOUT 78 YEARS, OCCUPATION: NOTHING JORTALA KALA TEHSIL PATHARIYA (MADHYA PRADESH)
• 2. NARESH S/O LATE BALIRAM MISHRA, AGED ABOUT 33 YEARS, OCCUPATION: LABOUR R/O JORTALA KALA, TEHSIL PATHARIYA (MADHYA PRADESH)
• 3. OMPRAKASH S/O LATE BALIRAM MISHRA, AGED ABOUT 29 YEARS, OCCUPATION: LABOUR R/O JORTALA KALA, TEHSIL PATHARIYA (MADHYA PRADESH)

.....PETITIONER

(BY DR. ANUVAD SHRIVASTAVA – ADVOCATE FOR THE PETITIONERS)

AND

• 1. SMT. SAKSHI W/O SANTOSH DUBEY, AGED ABOUT 23 YEARS, HRIDAYPUR TEHSIL AND DISTRICT DAMOH (MADHYA PRADESH)
• 2. STATE OF MADHYA PRADESH THR. COLLECTOR DISTT-DAMOH (MADHYA PRADESH)

.....RESPONDENTS

(SHRI SHAILENDRA VERMA – ADVOCATE FOR RESPONDENT NO.1) (SHRI MANHAR DIXIT – PANEL LAWYER FOR THE RESPONDENT NO.1/STATE)

This petition coming on for admission this day, the court passed the following:

ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 13.02.2019 passed by Civil Judge Class-II, Pathariya, District Damoh in Civil Suit No. 28-A/2016.

2. The facts necessary for disposal of the present petition in short, are that the petitioners have filed civil suit against the respondent No.1 seeking declaration and perpetual injunction by pleading inter alia that the respondent No.1 is not their family member and in connivance with the revenue authorities her name has been recorded as grand daughter of petitioner No.1. Accordingly, they filed an application for conducting DNA test, which was rejected by order dated 30.11.2018. Again, second application was filed for conducting DNA test in order to establish the paternity of the respondent No.1 but by the impugned order, the same has been rejected.

3. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that DNA test is the only conclusive evidence to establish the paternity and thus the trial Court has committed a material illegality by rejecting such application. To buttress her contention, the counsel for the petitioners has relied upon the judgment passed by the Hajira beevi and others v. Shamila P. Iqbal and another reported in AIR 2004 Kerala 240.

4. Heard the counsel for the petitioners.

5. DNA test should not be directed in a casual manner as it may violate privacy of any individual. Furthermore, the present case is with regard to the claim that the name of the respondent No.1 has been wrongly mutated in the revenue records by showing her to be grand daughter of the petitioner No.1. It is the case of the petitioners that son of the petitioner No.1 namely Govind has expired but the respondent No.1 is not the daughter of late Govind. The controversy involved in the present case is no more res integra.

6. The Supreme Court in the case of Ashok Kumar v. Raj Gupta and others reported in (2022) 1 SCC 20 has held as under:-

"8. This Court in Banarsi Dass v. Teeku Dutta [Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449] had declared that DNA test is not to be directed as a matter of routine but only in deserving cases. A petition was filed in that case for grant of succession certificate in respect of properties of the deceased. The plaintiff claimed to be the deceased's daughter and the only Class 1 legal heir, under the Hindu Succession Act, 1956. The deceased had died intestate, leaving behind 5 brothers. The Delhi High Court denied [Teeku Dutta v. State, 2004 SCC OnLine Del 31] one of the brother's applications for conducting the DNA test of the daughter to establish her paternity. Arijit Pasayat, J. upheld the decision of the High Court in the following passage of the judgment : (SCC p. 454, para 10)

"10. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). 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."

9. In Bhabani Prasad Jena v. Orissa State Commission for Women [Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633 : (2010) 3 SCC (Civ) 501 : (2010) 3 SCC (Cri) 1053] , R.M. Lodha, J., while reconciling two earlier decisions [Goutam Kundu v. State of W.B., (1993) 3 SCC 418 : 1993 SCC (Cri) 928] , [Sharda v. Dharmpal, (2003) 4 SCC 493] of this Court on the point, had rightfully prescribed that : (SCC p. 643, para 23)

"23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu [Goutam Kundu v. State of W.B., (1993) 3 SCC 418 : 1993 SCC (Cri) 928] and Sharda [Sharda v. Dharmpal, (2003) 4 SCC 493] . In Goutam Kundu [Goutam Kundu v. State of W.B., (1993) 3 SCC 418 : 1993 SCC (Cri) 928] it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda [Sharda v. Dharmpal, (2003) 4 SCC 493] while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course."

The learned Judge while noting the sensitivities involved with the issue of ordering a DNA test, opined that 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".

10. The above decision in Bhabani Prasad Jena [Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633 : (2010) 3 SCC (Civ) 501 : (2010) 3 SCC (Cri) 1053] was considered and approved in Dipanwita Roy v. Ronobroto Roy [Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365 : (2015) 1 SCC (Civ) 495 : (2015) 1 SCC (Cri) 683] , where the Court noticed from the facts that the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, 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 [Ronobrto Roy v. Dipanwita Roy, 2012 SCC OnLine Cal 13135] of the High Court to order for DNA testing was approved by the Supreme Court. Even then, J.S. Khehar, J., writing for the Division Bench, considered it appropriate to record a caveat to the effect that the wife may refuse to comply with the High Court direction for the DNA test but in that case, presumption may be drawn against the party.

11. In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled.

12. This Court in Kamti Devi v. Poshi Ram [Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 : 2001 SCC (Cri) 892] , while determining the question of standard of proof required to displace the presumption in favour of paternity of child born during subsistence of valid marriage held : (SCC p. 316, para 10)

"10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above."

13. The presumption of legitimacy of a child can only be displaced by strong preponderance of evidence, and not merely by balance of probabilities. The material portion of the Court's opinion is produced hereinbelow : (Kamti Devi case [Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 : 2001 SCC (Cri) 892] , SCC p. 316, para 11)

"11. … But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatised. If a court declares that the husband is not the father of his wife's child, without tracing out its real father the fallout on the child is ruinous apart from all the ignominy visiting his mother. The bastardised child, when grows up would be socially ostracised and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequence befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff husband."

14. It was also the view of the Court that the normal rule of evidence is that the burden is on the party that asserts the positive. But in instances where that is challenged, the burden is shifted to the party, that pleads the negative. Keeping in mind the issue of burden of proof, it would be safe to conclude that in a case like the present, 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 stigmatising 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.

15. 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. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , wherein the right to privacy has been declared a constitutionally protected right in India. 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.

16. It cannot be overlooked that in the present case, the application to subject the plaintiff to a DNA test is in a declaratory suit and the plaintiff has already adduced evidence and is not interested to produce additional evidence (DNA), to prove his case. It is now the turn of the defendants to adduce their evidence. At this stage, they are asking for subjecting the plaintiff to a DNA test. Questioning the timing of the application the trial court dismissed the defendants' application and we feel that it was the correct order.

17. In the yet to be decided suit, the plaintiff has led evidence through sworn affidavits of the respondents, his school leaving certificates and his domicile certificate. Significantly, Respondent 1, who is one of the 3 siblings (defendants) had declared in her affidavit that the plaintiff was raised as a son by her parents. Therefore, the nature of further evidence to be adduced by the plaintiff (by providing DNA sample), need not be ordered by the court at the instance of the other side. 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.

18. Having answered these questions, an additional issue to be resolved is whether refusal to undergo DNA testing amounts to "other evidence" or in other words, can an adverse inference be drawn in such situation. In Sharda v. Dharmpal [Sharda v. Dharmpal, (2003) 4 SCC 493] a three-Judge Bench in the opinion written by S.B. Sinha, J. rightly observed in para 79 that "if despite an order passed by the court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference" can be made out against the person within the ambit of Section 114 of the Evidence Act. The plaintiff here has adduced his documentary evidence and is disinclined to produce further evidence. He is conscious of the adverse consequences of his refusal but is standing firm in refusing to undergo the DNA test. His suit eventually will be decided on the nature and quality of the evidence adduced. The issue of drawing adverse inference may also arise based on the refusal. The Court is to weigh both sides' evidence with all attendant circumstances and then reach a verdict in the suit and this is not the kind of case where a DNA test of the plaintiff is without exception.

19. 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."

7. In the case of Ashok Kumar (supra), the Supreme Court has set aside the order for conducting DNA text to find paternity of the litigant in property dispute. The case is duly covered by the proposition of law led down by the Supreme Court in the case of Ashok Kumar (supra).

8. Accordingly, this Court is of the considered opinion that no jurisdictional error was committed by the trial Court by rejecting application for conducting DNA test.

9. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

vinay* VINAY KUMAR BURMAN 2023.07.03 17:28:55 +05'30'