ASHOK KUMARversusRAJ GUPTA & ORS.

                          [2021] 6 S.C.R. 1113                                1113


                           ASHOK KUMAR                                        A
                                    v.
                         RAJ GUPTA & ORS.
                    (Civil Appeal No. 6153 of 2021)
                          OCTOBER 1, 2021                                     B
    [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
       Suit – Declaratory suit – Plaintiff, if can be subjected to DNA
test against will – Test of eminent need – Declaratory suit filed by
appellant-plaintiff claiming ownership over coparcenary property
                                                                              C
of respondents-defendants’ parents –Defendants sought plaintiff ’s
DNA test – Application dismissed – Revision Petition – Allowed by
High Court – On appeal, held: In the present case, the application
to subject the plaintiff to a DNA Test is in a declaratory suit – Plaintiff
has already adduced evidence and is not interested to produce
additional evidence (DNA) to prove his case – It is now the turn of           D
the defendants to adduce their evidence – Trial Court rightly
questioned the timing of their application and dismissed it –
Defendants cannot compel the plaintiff to adduce further evidence
in support of their case – Appellant brought on record the evidence
in his support which as per him adequately establishes his case –
                                                                              E
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 litigation where the interests are
to be balanced and the test of eminent need is not satisfied, the
protection of the right to privacy of the plaintiff should get
precedence – Impugned judgment set aside – Order passed by Trial              F
Court restored – Evidence Act, 1872 – ss.112, 114 – Constitution of
India.
       Evidence Act, 1872 – s.112 – Held: Indian law leans towards
legitimacy and frowns upon bastardy – Presumption of legitimacy
of a child can only be displaced by strong preponderance of                   G
evidence, and not merely by balance of probabilities.
     Constitution of India – Right to privacy – DNA Tests – Test of
proportionality – Discussed.

                                                                              H
                                  1113
1114            SUPREME COURT REPORTS                      [2021] 6 S.C.R.


 A           Allowing the appeal, the Court
              HELD: 1.1 In circumstances where other evidence is
       available to prove or dispute the relationship, the court should
       ordinarily refrain from ordering blood tests. Such tests impinge
       upon the right of privacy of an individual and could also have
 B     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. The presumption of legitimacy
       of a child can only be displaced by strong preponderance of
       evidence, and not merely by balance of probabilities. Normal rule
       of evidence is that the burden is on the party that asserts the
 C     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, 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
 D     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. [Para 11.1, 11.2 and
       12][1120-F-G; 1121-D-E; 1122-A-C]
 E
             Kamti Devi v. Poshi Ram 2001(5) SCC 311 : [2001] 3
             SCR 729 – relied on.
              1.2 DNA is unique to an individual (barring twins) and can
       be used to identify a person’s identity, trace familial linkages or
 F     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 v. Union
       of India, wherein the right to privacy has been declared a
       constitutionally protected right in India. The Court should
 G     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. In the
 H
               ASHOK KUMAR v. RAJ GUPTA & ORS.                             1115


present case, the application to subject the Plaintiff to a DNA            A
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
                                                                           B
the application the trial Court dismissed the defendants
application. It was the correct order. 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, the respondent No.1, who is one of the
3 siblings (defendants) had declared in her affidavit that the Plaintiff   C
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, the
                                                                           D
protection of the right to privacy of the Plaintiff should get
precedence. [Para 13, 14][1122-C-H; 1123-A-B]
      K.S Puttaswamy v. Union of India 2019 (1) SCC 1 :
      [2018] 8 SCR 1 – followed.
      Bhabani Prasad Jena vs. Convenor Secretary, Orissa                   E
      State Commission for Women & Anr. (2010) 8 SCC 633
      : [2010] 9 SCR 457 – relied on.
      1.3 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. The            F
plaintiff 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.             G
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 respondent cannot compel the plaintiff to adduce
                                                                           H
1116             SUPREME COURT REPORTS                        [2021] 6 S.C.R.


 A     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 appellant (plaintiff) has brought on record
       the evidence in his support which in his assessment adequately
 B
       establishes his case. His suit will succeed or fall with those
       evidence, subject of course to the evidence adduced by the other
       side. 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 impugned judgment is set
 C     aside. The order passed by the Trial Court is restored. The suit
       to proceed accordingly. [Para 15-17][1123-B, D-H; 1124-A]
               Sharda vs. Dharmpal 2003(4) SCC 493 : [2003] 3 SCR
               106; Banarsi Dass V. Teeku Dutta 2005(4) SCC 449 :
               [2005] 3 SCR 923 – relied on.
 D             Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365 :
               [2014] 11 SCR 553 – referred to.
                                Case Law Reference
       [2005] 3 SCR 923                 relied on              Para 8
 E     [2010] 9 SCR 457                 relied on              Para 9
       [2014] 11 SCR 553                referred to            Para 10
       [2001] 3 SCR 729                 relied on              Para 11.1
       [2018] 8 SCR 1                   followed               Para 13
 F     [2003] 3 SCR 106                 relied on              Para 15
               CIVIL APPELLATE JURISDICTION: Civil Appeal No.6153 of
       2021.
             From the Judgment and Order dated 08.03.2019 of the High Court
 G     of Punjab and Haryana at Chandigarh in Civil Revision No.8695 of 2017.
               Ms. Sunieta Ojha, Adv. for the Appellant.
              Rameshwar Singh Malik, Sr. Adv., Ms. Ritika Singh, Jitesh Sharma,
       Mrs. Mona K. Rajvanshi, Jitesh Malik, Jivesh Malik, Satish Kumar, Advs.
       for the Respondents.
 H
                ASHOK KUMAR v. RAJ GUPTA & ORS.                                1117


      The Judgment of the Court was delivered by                               A
      HRISHIKESH ROY, J.
      1. Leave granted.
       2. Heard Ms. Sunieta Ojha, the learned counsel for the appellant
(plaintiff). Also heard Mr. Rameshwar Singh Malik, the learned Senior          B
Counsel appearing for the respondents (defendants).
       3. The appellant Ashok Kumar filed CS No. 53/2013 seeking
declaration of ownership of property, left behind by late Trilok Chand
Gupta and late Sona Devi. He arrayed the couple’s three daughters as
defendants in the Suit and claimed himself to be the son of Trilok Chand       C
Gupta and Sona Devi. In their written statement, the defendants denied
that the plaintiff is the son of their parents (Trilok Chand Gupta and Sona
Devi), and as such he is disentitled from any share in their parental
property. The defendants also set up an exclusive claim on the property
based on the Will dated 16.4.1982 (registered on 25.4.1982) executed
by their late mother Sona Devi.                                                D
       4. In course of the proceedings before the learned Addl. Civil
Judge (Sr. Division), Kalka, on closure of the plaintiff’s evidence, when
the suit was slated for the other side’s evidence, the defendants filed an
application on 19.4.2017 seeking direction from the Court to conduct a
Deoxyribonucleic Acid Test (for short “DNA test”) of the plaintiff and         E
either of the defendants, to establish a biological link of the plaintiff to
the defendants parents i.e. late Trilok Chand Gupta and Smt. Sona
Devi.This application was opposed by the plaintiff with the projection
that the defendants’ application is an abuse of the process of law and
that there are adequate evidences placed before the Court by the plaintiff     F
to show that he is the son of Trilok Chand Gupta and Sona Devi. The
plaintiff in his opposition had specifically pleaded that the mother of the
plaintiff and the defendants had submitted sworn affidavit before the
Municipal Committee, Kalka to transfer the Property No. 496, Pahari
Bazar, Kalka in her name, mentioning the name of the plaintiff as her
son. The copy of the concerned affidavit was duly placed on record in          G
the suit proceedings. Similarly, sworn affidavits of the three defendants
regarding transfer of the property No. 496, Pahari Bazar, Kalka, where
again the plaintiff was admitted to be the son of late Trilok Chand Gupta
and late Smt. Sona Devi, were also brought on record in the suit. With
such projection of admission on his linkage to the defendants’ parents,
                                                                               H
1118             SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A     the plaintiff opposed the DNA test suggested in the defendants’ application
       and offered to rely on the already adduced evidence to prove his case.
              5. The defendants’ application for conducting the DNA test for
       the plaintiff (at the cost of the defendants) was disposed of by the Court
       by referring to the fact that the CS No. 53/2013 is for declaration of
 B     ownership of property left behind by late Trilok Chand Gupta and late
       Sona Devi where the defendants have denied that the plaintiff is their
       brother or the son of their parents. The learned Judge noted that the
       evidence was already led by the plaintiff to prove his case and the
       application of the defendants was filed at that stage of the Suit when it
       was their turn to lay their evidence. Taking these aspects into account,
 C     the Court opined that onus is on the plaintiff to prove that he is a
       coparcener amongst the defendants by way of his birth in their family
       and such burden does not shift to the defendants. Since the plaintiff had
       refused to give the DNA sample, the view taken was that the Court
       cannot force the plaintiff to provide DNA sample and accordingly the
 D     defendants’ application came to be dismissed by the order dated
       28.11.2017 by the learned Trial Judge.
              6. Thus aggrieved, the defendants moved the High Court by filing
       a Revision Petition against the order dated 28.11.2017. The parties were
       heard and the learned judge upon due consideration observed that a
 E     DNA test is a double -edged weapon and is a vital test to determine the
       relation of a party and the plaintiff who is claiming to be the son of late
       Trilok Chand Gupta and Sona Devi, should not shy away from the DNA
       test suggested by the defendants. The plea for conducting the DNA test
       on the plaintiff was accordingly allowed by interfering with the contrary
       view taken by the trial Court. Taking exception to the revisional order of
 F     the High Court, the aggrieved plaintiff is before this Court.
              7. The pleadings were exchanged quite early in the Civil Suit No.
       53/2013, but only after closure of the plaintiff’s evidence, the defendants
       filed application on 19.4.2017 for subjecting the plaintiff to a DNA test.
       The question therefore is, whether in a declaratory suit where ownership
 G     over coparcenary property is claimed, the plaintiff, against his wishes,
       can be subjected to the DNA test. The related question is 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.
       The timing of the application is equally relevant. The plaintiff has already
       led evidence from his side to prove relationship between the parties and
 H
                   ASHOK KUMAR v. RAJ GUPTA & ORS.                             1119
                         [HRISHIKESH ROY, J.]

at this stage whether the High Court should have directed the plaintiff to     A
undergo the DNA test. Another issue of concern is whether in the
absence of consent, a party can be forced to provide sample for a DNA
test.
       8. This court in Banarsi Dass V. Teeku Dutta1 had declared that
DNA test is not to be directed as a matter of routine but only in deserving    B
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 one of the brother’s applications
for conducting the DNA test of the daughter to establish her paternity.        C
Justice Arijit Pasayat upheld the decision of the High Court in the
following passage of the judgment: -
         “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 is est quem nuptiae demonstrant (he            D
         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            E
         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 vs. Convenor Secretary, Orissa
State Commission for Women &Anr. 2, Justice R.M. Lodha, while
reconciling two earlier decisions of this Court on the point, had rightfully   F
prescribed that;
         “23. There is no conflict in the two decisions of this Court,
         namely, Goutam Kundu [(1993) 3 SCC 418 : 1993 SCC (Cri)
         928] and Sharda [(2003) 4 SCC 493]. In Goutam Kundu
         [(1993) 3 SCC 418 : 1993 SCC (Cri) 928] it has been laid              G
         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
1
    2005(4) SCC 449
2
    (2010) 8 SCC 633                                                           H
1120                SUPREME COURT REPORTS                         [2021] 6 S.C.R.


 A              must carefully examine as to what would be the consequence
                of ordering the blood test. In Sharda [(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
 B
                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
 C     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 (supra) was
       considered and approved in Dipanwita Roy vs. Ronobroto Roy3, where
 D     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
 E     facts, the decision of the High Court to order for DNA testing was
       approved by the Supreme Court. Even then, Justice J.S. Khehar, 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.
 F            11.1 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
 G     in law of legitimacy of a child cannot be lightly repelled. This Court, in
       Kamti Devi v. Poshi Ram4, while determining the question of standard
       of proof required to displace the presumption in favor of paternity of
       child born during subsistence of valid marriage held:
       3
           (2015) 1 SCC 365
 H     4
           2001(5) SCC 311
                ASHOK KUMAR v. RAJ GUPTA & ORS.                               1121
                      [HRISHIKESH ROY, J.]

      “10. We may remember that Section 112 of the Evidence Act               A
      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
                                                                              B
      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                C
      a child of which he may be innocent. But even in such a case
      the law leans in favor 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
                                                                              D
      conclusiveness must be answered in the light of what is meant
      by access or non-access as delineated above.”
       11.2. 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
herein below:                                                                 E
      “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 illegitimatized. 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           F
      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            G
      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.”                               H
1122                SUPREME COURT REPORTS                          [2021] 6 S.C.R.


 A             12. It was also the view of the Court that 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,
 B
       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.
 C
              13. 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
 D     of this Court in K.S Puttaswamy v. Union of India5, 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
 E     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
 F     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.
              14. In the yet to be decided suit, the plaintiff has led evidence
 G
       through sworn affidavits of the Respondents, his School Leaving
       Certificates and his Domicile Certificate. Significantly, the respondent
       No.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,

       5
 H         2019 (1) SCC 1
                  ASHOK KUMAR v. RAJ GUPTA & ORS.                                1123
                        [HRISHIKESH ROY, J.]

the nature of further evidence to be adduced by the plaintiff (by providing      A
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.
                                                                                 B
       15. Having answered these questions, 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 vs. Dharmpal6 a three judges bench in the opinion
written by Justice S.B. Sinha rightly observed in paragraph 79 that              C
“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       D
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 side’s evidence with all attendant circumstances
and then reach a verdict in the Suit and this is not the kind of case where      E
a DNA test of the plaintiff is without exception.
        16. 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          F
manner, suggested by the contesting party.
       17. The appellant (plaintiff) as noted earlier, has brought on record
the evidence in his support which in his assessment adequately establishes
his case. His suit will succeed or fall with those evidence, subject of
course to the evidence adduced by the other side. When the plaintiff is          G
unwilling to subject himself to the DNA test, forcing him to undergo one
would impinge on his personal liberty and his right to privacy. Seen from
this perspective, the impugned judgment merits interference and is set
aside. In consequence thereof, the order passed by the learned Trial
6
    2003(4) SCC 493                                                              H
1124             SUPREME COURT REPORTS                      [2021] 6 S.C.R.


 A     Court on 28.11.2017 is restored. The suit is ordered to proceed
       accordingly.
              18. With the above order, the appeal stands allowed leaving the
       parties to bear their respective cost.

 B     Divya Pandey                                             Appeal allowed.




 C




 D




 E




 F




 G




 H