Read Judgment: Ashok Kumar vs. Raj Gupta & Ors  

Pankaj Bajpai

New Delhi, October 4, 2021: The Supreme Court has recently opined that 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. 

A Division Bench of Justice R. Subhash Reddy and Justice Hrishikesh Roy observed that when the plaintiff is unwilling to subject himself to the DNA test in a declaration suit, then forcing him to undergo one would impinge on his personal liberty and his right to privacy. 

The background of the case was that the plaintiff filed a suit seeking declaration of ownership of property left behind by late Trilok Chand Gupta and late Sona Devi, claiming to be the their son. On the other hand, the daughters who were defendants disputed the plaintiff’s claim. 

During the trial, the defendants filed an application seeking to direct the plaintiff to undergo DNA test to establish his biological link with late Trilok Chand Gupta and late Sona Devi. The plaintiff objected to this and pointed out that he has produced adequate documentary evidence to support his claim. 

The Trial Court dismissed the application saying that the plaintiff cannot be compelled to undergo the test. However, the High Court on appeal,directed the plaintiff to undergo the DNA test. Hence, the plaintiff approached the Supreme Court. 

After considering the facts & circumstances, the Apex Court noted issues arising in the present case as to whether in a declaratory suit where ownership over coparcenary property is claimed, the plaintiff, against his wishes, can be subjected to the DNA test? 

The Apex Court further noted other issues as to whether the plaintiff without subjecting himself to a DNA test, is entitled to establish his right over the property in question, through other material evidence; or, whether in the absence of consent, a party can be forced to provide sample for a DNA test?  

Quoting the decision in case of Banarsi Dass vs. Teeku Dutta, where it was held that DNA test is not to be directed as a matter of routine but only in deserving cases, as well as the decision in case of Dipanwita Roy vs. Ronobroto Roy , in a case related to alleged infidelity, wherein it was held that adverse inference may be drawn against a party who refuses to undergo the DNA Test, the Top Court observed that possibility of stigmatizing a person calls for consideration. 

The Division Bench opined 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. 

Referring to unanimous decision of this Court in K.S Puttaswamy vs. Union of India , wherein the right to privacy has been declared a constitutionally protected right in India, the Bench elaborated that the Court should 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. 

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”, observed the Bench. 

The Bench further added that the Court is to weigh both side’s 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. 

The Division Bench went on to observe that in circumstances where other evidence is available to prove or dispute the relationship, the Court should ordinarily refrain from ordering blood tests, as such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. 

Accordingly, the Apex Court quashed the judgment of the High Court whereby the plaintiff was directed in a suit to undergo DNA test. 

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