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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Paramjeet Singh
C.R. No. 5090 of 2012
Rajli @ Rajjo
v.
Kapoor Singh & Ors.
{Decided on 03/12/2013}
DNA Test--Obtaining of samples forcefully--This will not violate right against self-incrimination or infringe the right of privacy.
(A) Evidence Act, 1872, S.112--Presumption of Paternity--DNA Test--In paternity disputes, DNA test can be directed--Contention that as per S.112 of Evidence Act, birth during marriage is conclusive proof of legitimacy and DNA Test cannot be ordered in routine manner--Contention rejected.
Today things have changed; paternity can be proved or disproved conclusively with DNA test. The party can be absolutely sure if the child is his or not and it can also be established by blood test performed to determine the paternity that the man tested was not actually the biological father of the child in question, as a result of which ethical issue arises and it is also not uncommon that to usurp the land of the others, paternity frauds are committed. When there is serious breach of trust and honesty with regard to birth of a child then the fundamental question of awareness arises. It does not matter that some one is going to lose, certainly the DNA test for establishing the paternity is a necessity. (Para 27)
(B) Evidence Act, 1872--DNA Test--Held; Obtaining of samples forcefully--This will not violate right against self-incrimination--The right of police to draw the samples from an accused person for the purpose of DNA profiling is accepted by law--There is no question of any infringement of the right of privacy or right against self incrimination--It is by now trite that in course of investigation, the DNA test can be conducted. (Para 23)
(C) Evidence Act, 1872--DNA Test--Held; that it is not always necessary to conduct D.N.A. Test on both the alleged father and mother--D.N.A. test performed only on the father will also show whether a particular child was born to the person on whom such test has been performed. (Para 16)
(D) Evidence Act, 1872--DNA Test--Held; DNA profiling has been statutorily recognized in the Code of Criminal Procedure and the judicial precedents as reliable scientific evidence. (Para 112)
(E) Evidence Act, 1872--DNA Test--Held; Scientific investigations are the need of the hour and must be carried out--DNA test is a scientific test and its accuracy is 99.99% and as such this must be used as evidence not only in sexual assault and violent crime cases, but also in civil cases involving question of paternity and consequent question of succession. (Para 19)
(F) Evidence Act, 1872--DNA Test--Held; DNA evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the High Court Rules and Orders--Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence--DNA analysis is admissible as evidence even on collateral matters when it tends in any reasonable degree to establish the probability or improbability of the fact in issue as per provisions of the Evidence Act. (Para 21)
Mr. Paramjeet Singh, J.:- Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 11.08.2012 (Annexure P/1) passed by learned Civil Judge (Junior Division) Charkhi Dadri vide which the petitioner has been directed to undergo DNA test.
2. The parties in this petition are hereinafter referred as they are arrayed in the suit i.e. petitioner as defendant no.2 and respondent no.1 as the plaintiff, other defendants have not appeared to contest the present revision petition.
3. Brief facts of the case are that respondent no.1-plaintiff (Kapoor Singh) filed a suit for declaration against the defendants inter-alia pleading therein that Gopal, Gabdu and Rama Nand (died in the year 1942) sons of Nathu were three brothers. Gabdu was married with Ghoghri and Rama Nand was married with Rajli, petitioner-defendant no.2. Partap respondent no.2-defendant no.1 took birth from the womb of Rajli petitioner -defendant no.2 and is not the son of Gabdu and Ghoghri. In R.S.A. No. 3282 of 2009, decided on 28.07.2011, it has been held that Rajli @ Rajjo never contracted kareva marriage with Gabdu (brother of deceased husband of petitioner-defendant no.2), so Partap cannot claim himself to be the son of Gabdu. As such, mutation entered on 02.10.1956 and attested on 03.08.1957 whereby 1/4th share of the property of Gabdu was given to Partap is illegal, null and void. It is also mentioned in the plaint that Gabdu died on 08.02.1956 leaving behind Bakhtawar, Maidhan and Rohtash as his only male heirs, whereas his property has also devolved upon defendant no.1-Partap by showing Partap to be the son of Gabdu. Respondent No.2-defendant no.1 filed separate written statement alleging that he is son of Gabdu and Ghoghri and not the son of Rajli @ Rajjo. Similar stand was taken by defendant no.2. Some of the defendants were proceeded against ex parte and did not file written statement. Replication was also filed. During the pendency of the proceedings before the trial Court, application dated 02.04.2012 was filed by respondent no.1-plaintiff for conducting DNA test of Partap and Rajli i.e. defendant nos. 1 and 2 respectively. The trial Court after considering the submissions of the parties, allowed the application dated 02.04.2012 and directed for conducting DNA test of Partap and Rajli – defendant nos.1 and 2 respectively. Hence, this writ petition.
4. I have heard learned counsel for the parties and perused the record.
5. Learned counsel for the petitioner vehemently contended that the plaintiff has to stand on his own legs to prove his case and cannot be allowed to use machinery of Court to bring positive evidence in his favour especially the evidence in the shape of scientific investigation i.e. DNA Test. Learned counsel further contended that Court is required to consider the presumption of law under Section 112 of the Indian Evidence Act, 1872 which clearly says birth during marriage is conclusive proof of legitimacy. There is no difference between the conclusive proof and conclusive evidence. Learned counsel further vehemently contended that DNA test cannot be ordered in a routine manner and made reference to a judgment of Hon’ble Supreme Court in Bhabani Prasad Jena vs. Convenor Secretary Orissa State Commission for Women and another, [2010(5) Law Herald (SC) 3264] : (2010) 8, SCC, 633. Learned counsel further cited a judgment of Hon’ble Supreme Court in Sharda vs. Dharmpal (2003) 4 Supreme Court Cases 493 to contend that DNA test affects the right to privacy and personal liberty. The presumption raised under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. There is no provision in the Code of Civil Procedure whereunder the DNA test may be ordered. Learned counsel further relied upon judgments of Hon’ble Delhi High Court in FAO (OS) No. 44 of 2011, Narayan Dutt Tiwari vs. Rohit Shekhar and
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