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Written by: Satyam Jain (Intern)

Edited by: Anubhav Yadav (Content Head & Developer)

The two-judge bench of Hon’ble Justices Mr. R. Subhash Reddy and Mr. Hrishikesh Roy set aside the judgement of the Himachal Pradesh High Court which had ordered DNA test against the decision of the Kalka Civil Court, opining that such orders are violative of Right to Personal Liberty and Right to Privacy of an individual.

The Case

Ashok Kumar vs. Raj Gupta & Ors C.A No. 6153 of 2021

The Facts

The dispute arose over a piece of ancestral property at Kalka, which belonged to Lt. Trilok Chand Gupta and Lt. Sona Devi (both of whom died intestate). The three daughters of the couple filed a civil suit against their brother for his exclusion from the ownership of the property on the grounds of him not being their biological brother. They demanded orders for a Deoxyribo Nucleic Acid test of Mr. Ashok Kumar, which he was unwilling to undergo and so, produced his SLC and Domicile certificate as enough documentary evidence of his legitimacy. The Civil Judge rejected the demands; aggrieved by which, the sisters moved the Shimla HC, which directed the DNA test. Mr. Ashok Kumar challenged the High Court’s decision in the apex court, which, on 01/10/2021, overturned the decision of H.P. HC; the suit is still pending.

Counsel appearing for the Plaintiff: Advocate Suneita Ojha

Counsel appearing for the Defendant: Sr. Advocate Rameshwar Singh Malik

The Law

Right to Personal liberty is mentioned in Article 21 (Protection of Life and Personal liberty). Right to Privacy, also called Right to Personal Autonomy, was declared a fundamental right under Article 21 in the landmark judgement of K.S. Puttuswamy V. UOI & Ors.

The Judgment

Forcing party to undergo DNA test against will impinges on personal liberty and right to privacy. The two-judge bench cited the landmark judgement in K.S. Puttaswamy V. UOI, where, the nine-judge bench declared the Right to Privacy as a Fundamental Right. The top court opined that refraining from blood tests is necessary due to infringement of privacy and grave societal repercussions. Stigmatizing a middle aged person as a bastard attaches ignominy to him. Also, DNA is unique to an individual and may reveal serious medical and familial conditions. The jury was of the opinion that DNA tests must be directed only in the absence of enough material evidence and after considering the proportionality of quest for the truth and societal implications of such direction. Interest and consent of the involved parties is of paramount significance. The bench also questioned the relevance of DNA test in declaratory suits of coparcenaries property. The judges also suggested that the Indian law leans towards legitimacy and frowns upon bastardy. The Supreme Court junked the orders of the DNA test passed by H.P. HC, restoring the judgement of the Civil Judge.

The Judicial Precedents Cited

  • S. Puttuswamy V. UOI & Ors. :

The top court declared the Right to Privacy as Fundamental and guarded by the Constitution of India.

  • Banarasi Dass V. Teeku Dutta (2005) :

The apex court opined that orders for a DNA test are not a matter of routine and are to be kept for deserving cases. The court also talked about the presumption of legitimacy of a person.

  • Bhabani Prasad Jena (Supra) (2010) :

The jury ruled that, when the positive is challenged, the onus of proof shifts to the party claiming the negative.

  • Dipanwita Roy V. Ronobroto Roy :

HC directed DNA test in the case of infidelity and it was approved by the Supreme Court.

The Way Ahead

The top court answered quite a few of the hot questions regarding the direction of a DNA test, including:

  • Is DNA test viable in a declaratory suit for coparcenary rights?
  • Are material evidences enough to prove biological relations?
  • Can a DNA test be ordered without the consent of the party?
  • Can the respondent compel the plaintiff to adduce further evidence in support of the defendants?
  • Is DNA test against the party’s will violative of Article 21?

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