Rohit Shekhar vs Narayan Dutt Tiwari - 2012 Supreme(Del) 1137

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Del) 1137

High Court of Delhi
A.K. SIKRI, RAJIV SAHAI ENDLAW, J.
Rohit Shekhar
Versus
Narayan Dutt Tiwari & Another
FAO(OS) No. 547 of 2011
Decided On : 27-04-2012

Advocates Appeared:
For the Appellants:Amit Sibal, Vedanta Varma, Giriraj Subramanium, Ms. Pragya Ohri, Vibhor Kush, Advocates.
For the Respondents:Bahar U. Barqui, Pramod Kumar Sharma, R1 -Jamal Akhatar, Gaurav Mitra with R2 -Mohit Chadha, Advocatess.

Headnote:
DNA Testing - Paternity Dispute - Civil Procedure Code, 1908 (CPC) - Order XXXIX Rules 1 & 2 - Section 112 of the Indian Evidence Act, 1872 - Summary of Acts and Sections: The court discussed the enforceability of a direction for DNA testing in a paternity dispute under Order XXXIX Rules 1 & 2 of the CPC and the interpretation of Section 112 of the Indian Evidence Act, 1872. The court also highlighted the right of a child to know his biological roots and the obligation of a biological father to maintain his child.
Fact of the Case:

The appellant filed a suit for declaration of paternity and sought a DNA test of the respondent no.1. The respondent no.1 refused to submit to the test, leading to a series of legal proceedings and appeals.
Finding of the Court:

The court found the refusal of the respondent no.1 to be wilful, mala fide, unreasonable, and unjustified. However, it held that the respondent no.1 cannot be physically compelled to submit a blood sample for DNA profiling, but the weight of such refusal would be considered in evaluating the evidence.
Issues: The issues included the enforceability of a direction for DNA testing, the right of the child to know his paternity, and the refusal of the respondent no.1 to comply with the court's order.
Ratio Decidendi: The court held that the order for DNA testing was enforceable and that the respondent no.1's refusal could lead to adverse inference. It emphasized the obligation of a biological father to maintain his child and the right of a child to know his biological roots.
Final Decision: The court allowed the appeal, set aside the order of the lower court, and clarified the procedure for compliance with the direction for DNA testing. It authorized the use of police assistance and reasonable force for compliance and ordered the respondent no.1 to pay costs of the appeal to the appellant.

Judgement Key Points

Certainly. Here are the key points derived from the provided legal document:

The court discussed the enforceability of a court order for DNA testing in a paternity dispute under Order XXXIX Rules 1 & 2 of the CPC and interpreted Section 112 of the Indian Evidence Act, emphasizing the child's right to know his biological roots and the obligation of a biological father to maintain his child (!) (!) (!) .
The case involved a suit for declaration of paternity, where the appellant sought DNA testing of the respondent, who refused to comply, leading to multiple legal proceedings and appeals (!) (!) .
The court recognized that while a person cannot be physically compelled to submit to DNA testing, refusal can be considered as an adverse inference in evaluating evidence. The court held that the order for DNA testing was enforceable, and the respondent’s refusal was mala fide, unreasonable, and unjustified (!) (!) (!) (!) .
It was clarified that physical confinement or force to obtain a blood sample is not permissible under statutory provisions, but courts can draw adverse inferences from non-compliance (!) (!) (!) .
The court emphasized that the order for DNA testing is an exercise of judicial power, and such orders are enforceable, especially considering technological advancements and the importance of establishing the truth (!) (!) (!) .
The court highlighted that enforcement of such orders may involve police assistance and reasonable force if the respondent continues to defy the court’s directions (!) (!) .
The principle of res judicata applies to prevent re-litigation of issues already decided in the same proceedings, and the court found that the respondent’s subsequent application was barred by this principle (!) (!) .
The court rejected the argument that the order was un-enforceable due to concerns about physical coercion or intrusion on rights under Article 21, affirming that enforcement measures are permissible and necessary to uphold the rule of law (!) (!) .
The appeal was allowed, the previous order for DNA testing was set aside, and clear procedures were established for compliance, including the use of police assistance and the respondent’s obligation to pay costs (!) .

Judgment :

RAJIV SAHAI ENDLAW, J.

1. The challenge in this appeal is to the judgment dated 23rd September, 2011 of the learned Single Judge allowing I.A. No. 10394/2011 of the respondent no.1 (defendant no.1 in the Suit) in CS(OS) No. 700/2008 filed by the appellant. Notice of the appeal was issued and the counsels have been heard.

2. CS(OS) No. 700/2008 is filed by the appellant for declaration, that he is the natural born son of the respondent no.1 and the respondent no.2 Dr. Ujjwala Sharma, and that the respondent no.1 is the father of the appellant and for perpetual injunction restraining respondent no.1 from denying in public or otherwise the fact that he is the father of the appellant. The said suit is pending consideration.

3. During the pendency of the suit, the appellant filed I.A. No. 4720/2008 under Order XXXIX Rules 1 & 2 of the Civil Procedure Code, 1908 (CPC) for direction to the respondent no.1 to submit himself for a DNA test and/or any other test required to determine the parentage of the appellant. The said application was contested by the respondent no.1. The learned Single Judge before whom the suit was then pending, vide order/judgment dated 23rd December, 2010 allowed the said application and directed the parties to appear before the Joint Registrar on 8th February, 2011; the Joint Registrar was directed to arrange for the DNA testing of the respondent no.1 by the Centre for Cellular & Molecular Biology (Constituent Laboratory of the Council of Scientific Industrial Research, Government of India); the respondent no.1 was directed to, on the date and time to be designated by the Joint Registrar, furnish the samples for such testing; the said Institute was directed to furnish the report to the Court within six weeks of receiving the samples.

4. The respondent no.1 preferred an appeal being FAO(OS) No. 44/2011 against the aforesaid order/judgment dated 23rd December, 2010. The said FAO(OS) was dismissed by the Division Bench of this Court on 7th February, 2011.

5. The respondent no.1 preferred a Special Leave Petition being SLP(Civil) No. 5756/2011 against the order dated 7th February, 2011 of the Division Bench. In the said SLP, the respondent no.1 sought ad interim ex parte stay of the operation of the orders of this Court. The Supreme Court, though on 18th March, 2011 issued notice of the SLP, but rejected the prayer for interim relief. The SLP is stated to be still pending.

6. The Joint Registrar of this Court, in accordance with the order dated 23rd December, 2010 (supra) of which there was no stay, directed the respondent no.1 to appear for collection of blood samples. The respondent no.1 however did not appear and on the contrary, filed I.A. No. 10394/2011 (supra) against order whereon the present appeal is preferred. The respondent no.1 in the said application sought a direction that he should not be pressurized, compelled or forced in any manner to involuntarily provide blood and/or other tissue sample(s) for DNA testing. The respondent no.1 on being asked to file an affidavit stating reasons for not furnishing the blood sample, in his affidavit dated 21st July, 2011 though admitted that there was no medical reason prohibiting him from giving sample for DNA testing but stated that he cannot be compelled to do so against his will. The learned Single Judge before whom the suit was now pending has vide order/judgment dated 23rd September, 2011 impugned in this appeal held the refusal of the respondent no.1 to submit the blood sample to be wilful, mala fide, unreasonable and unjustified. However after holding so, it has been held that the respondent no.1 cannot be physically compelled or be physically confined for submitting a blood sample for DNA profiling, in implementation of the order/judgment dated 23rd December, 2010. The learned Single Judge has further held that the weight to be attached to such refusal, shall be considered while evaluating the evidence produced by the parties.

7. The appellant i

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2012 Supreme(Del) 1137

High Court of DelhiA.K. SIKRI, RAJIV SAHAI ENDLAW, J.Rohit ShekharVersusNarayan Dutt Tiwari & AnotherFAO(OS) No. 547 of 2011Decided On : 27-04-2012

Cases Referred (29)

High Court of Delhi
A.K. SIKRI, RAJIV SAHAI ENDLAW, J.
Rohit Shekhar
Versus
Narayan Dutt Tiwari & Another
FAO(OS) No. 547 of 2011
Decided On : 27-04-2012