ASHOK KUMAR versus RAJ GUPTA & ORS.

Citation: [2021] 6 S.C.R. 1113 · Decided: 01-10-2021 · Supreme Court of India · Bench: R. SUBHASH REDDY · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2021] 6 S.C.R. 1113
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ASHOK KUMAR
v.
RAJ GUPTA & ORS.
(Civil Appeal No. 6153 of 2021)
OCTOBER 1, 2021
[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
Suit – Declaratory suit – Plaintiff, if can be subjected to DNA
test against will – Test of eminent need – Declaratory suit filed by
appellant-plaintiff claiming ownership over coparcenary property
of respondents-defendants’ parents –Defendants sought plaintiff’s
DNA test – Application dismissed – Revision Petition – Allowed by
High Court – On appeal, held: In the present case, the application
to subject the plaintiff to a DNA Test is in a declaratory suit – Plaintiff
has already adduced evidence and is not interested to produce
additional evidence (DNA) to prove his case – It is now the turn of
the defendants to adduce their evidence – Trial Court rightly
questioned the timing of their application and dismissed it –
Defendants cannot compel the plaintiff to adduce further evidence
in support of their case – Appellant brought on record the evidence
in his support which as per him adequately establishes his case –
Nature of further evidence to be adduced by the plaintiff (by
providing DNA sample), need not be ordered by the Court at the
instance of the other side – In such litigation where the interests are
to be balanced and the test of eminent need is not satisfied, the
protection of the right to privacy of the plaintiff should get
precedence – Impugned judgment set aside – Order passed by Trial
Court restored – Evidence Act, 1872 – ss.112, 114 – Constitution of
India.
Evidence Act, 1872 – s.112 – Held: Indian law leans towards
legitimacy and frowns upon bastardy – Presumption of legitimacy
of a child can only be displaced by strong preponderance of
evidence, and not merely by balance of probabilities.
Constitution of India – Right to privacy – DNA Tests – Test of
proportionality – Discussed.
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
Allowing the appeal, the Court
HELD: 1.1 In circumstances where other evidence is
available to prove or dispute the relationship, the court should
ordinarily refrain from ordering blood tests. Such tests impinge
upon the right of privacy of an individual and could also have
major societal repercussions. Indian law leans towards legitimacy
and frowns upon bastardy. The presumption in law of legitimacy
of a child cannot be lightly repelled. The presumption of legitimacy
of a child can only be displaced by strong preponderance of
evidence, and not merely by balance of probabilities. Normal rule
of evidence is that the burden is on the party that asserts the
positive. But in instances where that is challenged, the burden is
shifted to the party, that pleads the negative. Keeping in mind
the issue of burden of proof, in a case like the present, the Court’s
decision should be rendered only after balancing the interests of
the parties, i.e, the quest for truth, and the social and cultural
implications involved therein. The possibility of stigmatizing a
person as a bastard, the ignominy that attaches to an adult who,
in the mature years of his life is shown to be not the biological
son of his parents may not only be a heavy cross to bear but
would also intrude upon his right of privacy. [Para 11.1, 11.2 and
12][1120-F-G; 1121-D-E; 1122-A-C]
Kamti Devi v. Poshi Ram 2001(5) SCC 311 : [2001] 3
SCR 729 – relied on.
1.2 DNA is unique to an individual (barring twins) and can
be used to identify a person’s identity, trace familial linkages or
even reveal sensitive health information. Whether a person can
be compelled to provide a sample for DNA in such matters can
also be answered considering the test of proportionality laid down
in the unanimous decision of this Court in K.S Puttaswamy v. Union
of India, wherein the right to privacy has been declared a
constitutionally protected right in India. The Court should
therefore examine the proportionality of the legitimate aims being
pursued, i.e whether the same are not arbitrary or discriminatory,
whether they may have an adverse impact on the person and that
they justify the encroachment upon the privacy and personal
autonomy of the person, being subjected to the DNA Test. In the
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present case, the application to subject the Plaintiff to a DNA
Test is in a declaratory suit and the plaintiff has already adduced
evidence and is not interested to produce additional evidence
(DNA), to prove his case. It is now the turn of the defendants to
adduce their ev

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