2012 Supreme(Del) 1137
RAJIV SAHAI ENDLAW, A.K.SIKRI
Rohit Shekhar – Appellant
Versus
Narayan Dutt Tiwari – Respondent
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.
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
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