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Forcing Party To Undergo DNA Test Against Will Impinges On Personal Liberty & Right To Privacy : Supreme Court

LIVELAW NEWS NETWORK
1 Oct 2021 11:36 AM GMT
Forcing Party To Undergo DNA Test Against Will Impinges On Personal Liberty & Right To Privacy : Supreme Court
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The Supreme Court has observed that forcing an unwilling party to undergo DNA test impinges on personal liberty and right to privacy."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", observed a bench comprising Justices R Subhash Reddy and Hrishikesh Roy."In circumstances where...

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The Supreme Court has observed that forcing an unwilling party to undergo DNA test impinges on personal liberty and right to privacy.

"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", observed a bench comprising Justices R Subhash Reddy and Hrishikesh Roy.

"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", the judgment added.

Holding so, the bench set aside the judgment of the High Court which had directed the plaintiff in a suit to undergo DNA test(case :Ashok Kumar v. Raj Gupta and others).

Factual Background

The suit was filed by the plaintiff seeking declaration of ownership of property left behind by late Trilok Chand Gupta and late Sona Devi. The plaintiff claimed to be the son of late Trilok Chand Gupta and Sona Devi, and arrayed their daughters as the defendants in the suit. The defendants disputed the plaintiff's claim and denied any relationship with him.

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.

Challenging the trial court's dismissal, the defendants filed appeal before the High Court, which directed the plaintiff to undergo the DNA test. Against the High Court order, the plaintiff approached the Supreme Court.

Issues identified by the Supreme Court

The Supreme Court noted that the following issues arose in the case :

Whether in a declaratory suit where ownership over coparcenary property is claimed, the plaintiff, against his wishes, can be subjected to the DNA test.\

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.

Whether in the absence of consent, a party can be forced to provide sample for a DNA test.

Considering the issues, the Court noted that it has been held in Banarsi Dass V. Teeku Dutta 2005(4) SCC 449 that DNA test is not to be directed as a matter of routine but only in deserving cases.

Later, in Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365, in a case related to alleged infidelity, the Court endorsed the view expressed in Banari Dass and added that adverse inference may be drawn against a party who refuses to undergo the DNA Test.

Possibility of stigmatizing a person to be considered

The judgment authored by Justice Hrishikesh Roy made the following significant observations :

"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 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".

Issue of proportionality to be considered

"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 v. Union of India, 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".

Trial court correctly dismissed the application

The Supreme Court noted that the application was filed after the plaintiff had already adduced his evidence. When the turn for the defendant's evidence came, they sought to subject the plaintiff to DNA test.  Considering the timing of the application, the Court said that the trial court correctly dismissed it.

The plaintiff had produced SSLC certificate, domicile certificate to show his biological link with the parents of the defendants.

Respondent cannot force the plaintiff to produce additional evidence

"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", the Court observed.

The Court said that the suit will have to be ultimately decided on the basis of the quality of evidence adduced by the plaintiff. He is conscious of the consequences of his refusal. The question of adverse inference may also arise in the trial.

"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", the Supreme Court stressed.

"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 Court added.

Case Details

Case Title : Ashok Kumar v. Raj Gupta and others | C.A No.6153/2021

Citation : LL 2021 SC 525

Click here to read/download the judgment

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