In the kind of cases where the interest will have to be balanced and the test of eminent need is not satisfied for undergoing a DNA Test, the protection of the right to privacy of the Person should get precedence as upheld by the Hon’ble Supreme Court through the learned bench of Justice Hrishikesh Roy in the case of Ashok Kumar v. Raj Gupta and Others [CIVIL APPEAL NO. 6153 OF 2021] (Arising out of SLP(C) No.11663 of 2019).
Brief facts of the case are that the 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 the 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.
In course of the proceedings before the learned Addl. Civil Judge (Sr. Division), Kalka, the defendants filed an application on 19.4.2017 seeking direction from the Court to conduct a Deoxyribonucleic Acid Test (for short “DNA test”) of the plaintiff and either of the defendants, to establish a biological link of the plaintiff to the defendants’ parents i.e., late Trilok Chand Gupta and Smt. Sona Devi.
The defendants’ application for conducting the DNA test for the plaintiff was disposed of by the Court by referring to the fact that the CS No. 53/2013 is for declaration of ownership of property left behind by late Trilok Chand Gupta and late Sona Devi. The learned Judge noted that the evidence was already led by the plaintiff to prove his case and the application of the defendants was filed at that stage of the Suit when it was their turn to lay their evidence. Since the plaintiff had refused to give the DNA sample, the view taken was that the Court cannot force the plaintiff to provide DNA sample and accordingly the defendants’ application came to be dismissed by the order dated 28.11.2017 by the learned Trial Judge.
The defendants moved the High Court by filing a Revision Petition against the order dated 28.11.2017. The parties were heard and the learned judge upon due consideration observed that a DNA test is a double -edged weapon and is a vital test to determine the relation of a party and the plaintiff who is claiming to be the son of late Trilok Chand Gupta and Sona Devi, should not shy away from the DNA test suggested by the defendants. Taking exception to the revisional order of the High Court, the aggrieved plaintiff is before the Hon’ble Supreme Court.
The Hon’ble Court, after considering the cases of Banarsi Dass V. Teeku Dutta, Kamti Devi v. Poshi Ram and Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women &Anr., held that, “The appellant (plaintiff) as noted earlier, 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 the evidence adduced by the other side. When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy. Seen from this perspective, the impugned judgment merits interference and is set aside. Inconsequence thereof, the order passed by the learned Trial Court on 28.11.2017 is restored. The suit is ordered to proceed accordingly.”
Judgment Reviewed by Vandana Ragwani