2021 Supreme(SC) 534

SUPREME COURT OF INDIA
R. SUBHASH REDDY, HRISHIKESH ROY, JJ.
Ashok Kumar - Appellant
Versus
Raj Gupta & Ors. - Respondents
Civil Appeal No. 6153 of 2021 (Arising out of SLP(C) No. 11663 of 2019)
Decided On : 01-10-2021

IMPORTANT POINTS
(1) Legitimacy of child – DNA test is not to be directed as a matter of routine but only in deserving cases – Indian law leans towards legitimacy and frowns upon bastardy – Presumption in law of legitimacy of a child cannot be lightly repelled.
(2) Respondent cannot compel plaintiff to adduce further evidence in support of defendants’ case.

Headnote:

(A) Indian Evidence Act, 1872 – Section 112 – Legitimacy of child – DNA Test – DNA test is not to be directed as a matter of routine but only in deserving cases – In circumstances where other evidence is available to prove or dispute relationship, court should ordinarily refrain from ordering blood tests – Such tests impinge upon right of privacy of an individual and could also have major societal repercussions – Indian law leans towards legitimacy and frowns upon bastardy – Presumption in law of legitimacy of a child cannot be lightly repelled – 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 burden is on party that asserts positive – But in instances where that is challenged, burden is shifted to party that pleads negative – In a case like present concerning title over coparcenary property, Court’s decision should be rendered only after balancing interests of parties, i.e, quest for truth, and social and cultural implications involved therein – Possibility of stigmatizing a person as a bastard, ignominy that attaches to an adult who, in mature years of his life is shown to be not biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy – Application to subject Plaintiff to a DNA Test is in a declaratory suit and plaintiff has already adduced evidence and is not interested to produce additional evidence (DNA), to prove his case – It is now turn of defendants to adduce their evidence – At this stage, they are asking for subjecting plaintiff to a DNA test – Questioning timing of application trial Court correctly dismissed defendant’s application – This is not the kind of case where a DNA test of plaintiff is without exception. (Paras 8, 11.1, 11.2, 12, 13 and 15)

(B) Property Law – Title dispute over coparcenary property – DNA Test – Issue of consent – Respondent cannot compel plaintiff to adduce further evidence in support of defendants’ case – In any case, it is burden on a litigating party to prove his case adducing evidence in support of his plea and court should not compel party to prove his case in the manner, suggested by contesting party – Appellant (plaintiff) has brought on record evidence in his support which in his assessment adequately establishes his case – His suit will succeed or fall with those evidence, subject to evidence adduced by other side – When plaintiff is unwilling to subject himself to DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy – Seen from this perspective, impugned judgment merits interference and set aside – Order passed by Trial Court restored and suit ordered to proceed accordingly. (Paras 16 and 17)

Facts of the case:

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 couple’s three daughters as defendants in the Suit and claimed himself to be the son of Trilok Chand 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. Plea for conducting the DNA test on the plaintiff was accordingly allowed by High Court by interfering with the contrary view taken by trial Court. Taking exception to the revisional order of the High Court, the aggrieved plaintiff is before this Court. The question is, whether in a declaratory suit where ownership over coparcenary property is claimed, 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 property in question, through other material evidence. Another issue of concern is whether in the absence of consent, a party can be forced to provide sample for a DNA test.

Findings of Court:

Appellant (plaintiff) 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 evidence adduced by the other side.

Result : Appeal allowed.