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The Supreme Court in a recent decision has held that 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 was hearing an appeal in a declaratory suit for ownership of property.

The Supreme Court Bench of Justice Hrishikesh Roy upheld the initial view of the Trial Court and set aside the DNA test ordered by the High Court.

“In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This because such tests impinge upon the right of privacy of an individual,” the Court highlighted. 

Justice Roy relied upon the proportionality test laid down in K.S Puttaswamy v. Union of India and stated: 

“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.”

While impinging the decision upon the possibility of stigmatizing a person as a bastard, it was the view of the court 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.

FACTUAL BACKGROUND

The appellant Ashok Kumar filed Suit 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 Gupta and Sona Devi. 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. 

In course of the proceedings before the learned Addl. Civil Judge (Sr. Division), the defendants filed an application seeking direction from the Court to conduct a Deoxyribonucleic Acid Test ( “DNA test”) of the plaintiff and 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 by contending 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 to show that he is the son of Trilok Chand Gupta and Sona Devi. 
The Trial Court opined that since the appellant had refused to go through a DNA test, he cannot be forced by the Court to do so. 

Upon a revision petition filed by the defendants the High Court allowed the DNA stating that a DNA test is a double-edged weapon and is a vital test to determine the relation of a party and that the Appellant should not shy away from the DNA test suggested by the defendants. 
Aggrieved by this order, the Appellant appealed to the Supreme Court to set aside the said order. 

VIEW OF SUPREME COURT 

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 as a matter of routine but only in deserving cases. Further, in Dipanwita Roy vs. Ronobr oto Roy(2015) 1 SCC 365, in a case related to alleged infidelity, the Court endorsed the view expressed in Banari Dass s and added that adverse inference may be drawn against a party who refuses to undergo the DNA Test.

“Indian law leans towards legitimacy and frowns upon bastardy. A child should always be presumed to be legitimate and such presumption can only be displaced by strong preponderance of evidence, and not merely by balance of probabilities, the Court noted,” the Court said.

The Supreme Court further asserted that in a case like this 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. 

Court noted that under normal rule of the burden of proof 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.
“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,” top court said.

Thus the Supreme Court concluded that the appellant has already produced his side of the case, he has produced evidence he has deemed fit.
His case will succeed or fail based on those evidence. It is now the turn of the defendants to adduce their evidence. Forcing the appellant to take a DNA test will encroach upon his personal liberty and right to privacy. 

Case Title: Ashok Kumar v. Raj Gupta and others

Access Copy of Judgment Here