The court upheld the right to privacy under Article 21, ruling that a party cannot be compelled to undergo a DNA test without exceptional circumstances, emphasizing the presumption of legitimacy in paternity cases.

JUDGMENT AND ORDER :

DEVASHIS BARUAH, J.

Heard Mr. S. Dutta, the learned Senior Counsel assisted by Mr. S. Dutta, the learned counsel appearing on behalf of the petitioner. Mr. S.Deka, the learned counsel appears on behalf of the respondents.

2. The supervisory jurisdiction of this Court under Article 227 of the Constitution of India has been invoked challenging the order dated 30.04.2024 passed by the learned Court of the Civil Judge (Senior Division), Lakhimpur, North Lakhimpur (hereinafter referred to as, “the learned Trial Court”) in petition No. 1195/2023 arising out of Title Suit No. 10/2022 whereby the said application was rejected.

3. It is seen from the records that the petitioner herein who is the defendant in the suit had filed an application under Order XXVI Rule 10A read with Section 151 of the Code of Civil Procedure, 1908 for scientific investigation relating to the question of paternity of the plaintiff No. 2 by means of DNA test (Deoxyribonucleic acid). The very basis on which the said application was filed is that the plaintiff No. 2 during his cross examination stated that he had no objection to the DNA test.

4. Be that as it may, the plaintiff No. 2 had filed the written objection wherein he had categorically stated that he was not agreeable to the DNA test. On the basis thereof, the learned Trial Court taking into account the right of privacy is a Constitutional right under Article 21 of the Constitution of India and there being no exceptional circumstances present rejected the application vide the impugned order dated 30.04.2024. This Court finds it relevant to incorporate the reasons assigned by the learned Trial Court in the impugned order. The relevant portion of the impugned order is reproduced herein under.

“It is pertinent to emphasize here that the plaintiff no. 2 has objected to the said DNA test being conducted on him. The Hon’ble Supreme Court had in a catena of decisions held that when a party is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge upon his personal liberty and his right to privacy thereby violating Article 21of the Constitution.

It also has major societal repercussions for the said person. However, it can be allowed exceptional circumstances in circumstances where other evidence is available to prove or dispute the relationship it is fit and proper to refrain from ordering the said DNA Test which might have adverse societal repercussions on the life of the plaintiff no. 2 as well as it would also tantamount to infringing upon his right to privacy.

Considering all the above, am of the opinion that there is no such exceptional circumstance in instant suit where DNA test would be left out as the last resort to prove or dispute the relationship of plaintiff no. 2 with Late Lila Kanta Ahom @ Gogoi, would not be just and proper and it would also tantamount to infringing upon Article 21 of the Constitution. Considering all the above, prayer of the defendant side is hereby rejected.”

5. This Court had heard the learned counsels for the parties and had given anxious consideration to the materials on record including the impugned order. The question arises as to whether this Court ought to exercise its supervisory jurisdiction in respect to the impugned order.

6. This Court has duly perused the application filed by the petitioner before the learned Trial Court. From a perusal of the said application, it is seen that the ground for seeking DNA test upon the plaintiff No. 2 is that the petitioner as defendant had submitted the written statement cum counter claim wherein a declaration was sought for to the effect that the plaintiff No. 2 is not the son of Late Lila Kanta Gogoi and as such the plaintiff No. 2 should undergo DNA test. On the other hand, the plaintiff No. 2 has refused to undergo DNA testing by exercising his right under Article 21 of the Constitution. Further to that, the plaintiff No. 2/the respondent herein has also stated that there are sufficient