11.1. The Apex Court in the case of ASHOK KUMAR v. RAJ
GUPTA6, has held as follows:
".... .... ....
15. 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 (Aadhaar-5 J.) v. Union of India [K.S.
Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1
SCC 1], 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.
16. It cannot be overlooked that in the 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 evidence. At
this stage, they are asking for subjecting the plaintiff to a
DNA test. Questioning the timing of the application the
trial court dismissed the defendants' application and we
feel that it was the correct order.
17. In the yet to be decided suit, the plaintiff has led
evidence through sworn affidavits of the respondents, his school
leaving certificates and his domicile certificate. Significantly,
Respondent 1, who is one of the 3 siblings (defendants) had
(2022) 1 SCC 20
declared in her affidavit that the plaintiff was raised as a son by
her parents. Therefore, the 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
kind of litigation where the interest will have to be balanced and
the test of eminent need is not satisfied our considered opinion
is that the protection of the right to privacy of the plaintiff
should get precedence.
... ... ...
19. The respondent cannot compel the plaintiff to
adduce further evidence in support of the defendants' case.
In any case, it is the burden on a litigating party to prove his
case adducing evidence in support of his plea and the court
should not compel the party to prove his case in the manner,
suggested by the contesting party.
20. 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 [Raj Gupta v. Ashok Kumar, 2019 SCC OnLine P&H
6032] merits interference and is set aside. In consequence
thereof, the order passed by the learned trial court on
28.11.2017 is restored. The suit is ordered to proceed
accordingly."
(Emphasis supplied)
The Apex Court holds that when the plaintiff or the defendant is
unwilling to subject himself to DNA test, forcing him to undergo one
would impinge on his personal liberty and his right to privacy. Seen
from the said perspective, the order which directed DNA test was
set aside therein.
11.2. The Apex Court again in IVAN RATHINAM supra
considers this delicate interplay between DNA, right to privacy and
right to dignity. The Apex Court holds as follows:
".... .... ....
D.1.2.1 Right to privacy and right to dignity
37. Having recognized the diverging pathways in the
present analysis, it is pertinent to first address the aspect of the
right to privacy. At the outset, a cursory reference to the
decision in K.S. Puttaswamy (Privacy-9J.) v. Union of
India, reveals that privacy is concomitant to the right of the
individual to exercise control over his or her personality. Privacy
includes, at its core, the preservation of personal intimacies, the
sanctity of family life, marriage, procreation, the home, and
sexual orientation. Privacy also connotes a right to be left alone,
as a corollary to the safeguarding of individual autonomy and
the ability of an individual to control vital aspects of his life.
Elaborating further, this Court held that:
"325. Like other rights which form part of the
fundamental freedoms protected by Part III, including the
right to life and personal liberty under Article 21, privacy is
not an absolute right. A law which encroaches upon privacy
will have to withstand the touchstone of permissible
restrictions on fundamental rights. In the context of Article
21 an invasion of privacy must be justified on the basis of a
law which stipulates a procedure which is fair, just and
reasonable. The law must also be valid with reference to the
encroachment on life and personal liberty under Article 21.
An invasion of life or personal liberty must meet the
threefold requirement of (i) legality, which postulates the
existence of law; (ii) need, defined in terms of a legitimate
State aim; and (iii) proportionality which ensures a rational
nexus between the objects and the means adopted to
achieve them."
38. In this context, while permitting an enquiry into
a person's paternity vide a DNA test, we must be mindful
of the collateral infringement of privacy. For this, the
court must satisfy itself that the threshold for the
abovementioned three conditions is satisfied. If even one
of these conditions fails, it is considered an unwarranted
invasion of privacy and consequently, of life and personal
liberty as embodied in Article 21 of the Constitution.
39. Similarly, when dealing with the right to
dignity, this Court, in X2 v. State (NCT of Delhi), held that
the right to dignity encapsulates the right of every
individual to be treated as a self-governing entity having
intrinsic value. It means that every human being
possesses dignity merely by being a human, and can
make self-defining and self-determining choices. Further,
this Court held that the right to dignity is intertwined
with the right to privacy. This means that a person can
exercise his right to privacy in order to protect his right
to dignity and vice-versa. Together, these rights protect
an individual's ability to make the most intimate
decisions regarding his life, including sexual
activity, whether inside or outside the confines of
marriage.
40. Forcefully undergoing a DNA test would subject
an individual's private life to scrutiny from the outside
world. That scrutiny, particularly when concerning
matters of infidelity, can be harsh and can eviscerate a
person's reputation and standing in society. It can
irreversibly affect a person's social and professional life,
along with his mental health. On account of this, he has
the right to undertake certain actions to protect his
dignity and privacy, including refusing to undergo a DNA
test.
41. Usually in cases concerning legitimacy, it is the
child's dignity and privacy that have to be protected, as
they primarily come under the line of fire. Though in this
instance, the child is a major and is voluntarily
submitting himself to this test, he is not the only
stakeholder bearing personal interest in the results,
whatever they may be. The effects of social stigma
surrounding an illegitimate child make their way into the
parents' lives as there may be undue scrutiny owing to
the alleged infidelity. It is in this backdrop that the
Appellant's right to privacy and dignity have to be
considered.
42. Moreover, the Respondent is already declared to be
the legitimate son of Mr. Raju Kurian. The fishing enquiry, which
he wants through the judicial process is seemingly, not meant to
bring 'certainty' to an uncertain event. Rather, it is
predominantly targeted to harm the Appellant's reputation. The
Respondent knows well who is his 'father' as per the law.
43. That apart, the courts must also remain abreast with
the effects such a probe would have on other relevant
stakeholders, especially women. Casting aspersions on a
married woman's fidelity would ruin her reputation, status, and
dignity; such that she would be castigated in society. Though in
this case, the Respondent's mother is actively associated in
propagating this vexatious litigation, one can only imagine the
repercussions in other cases where a child, in utter disregard to
the sentiments and self-respect of their mother, initiates
proceedings seeking a declaration of paternity? The conferment
of such a right can lead to its potential misuse against
vulnerable women. They would be put to trial in a court of law
and the court of public opinion, causing them significant mental
distress, among other issues. It is in this sphere that their right
to dignity and privacy deserve special consideration.
44. It must be noted that the law permits only a
preliminary enquiry into a person's private life by allowing the
parties to bring evidence on record to prove non-access to
dislodge the presumption of legitimacy. When the law provides
for a mode to attain a particular object, that mode must be
satisfied. When the evidence submitted does not rebut this
presumption, the court cannot subvert the law to attain a
particular object, by permitting a roving enquiry into a person's
private life, such as through a DNA test.
... ... ...
D.1.2.2 Eminent need for a DNA test
46. When dealing with the eminent need for a DNA
test to prove paternity, this Court balances the interests
of those involved and must consider whether it is
possible to reach the truth without the use of such a test.
47. First and foremost, the courts must, therefore,
consider the existing evidence to assess the presumption
of legitimacy. If that evidence is insufficient to come to a
finding, only then should the court consider ordering a
DNA test. Once the insufficiency of evidence is
established, the court must consider whether ordering a
DNA test is in the best interests of the parties involved
and must ensure that it does not cause undue harm to the
parties. There are thus, two blockades to ordering a DNA
test: (i) insufficiency of evidence; and (ii) a positive
finding regarding the balance of interests."
(Emphasis supplied)
The Apex Court, in the afore-quoted paragraphs of IVAN
RATHINAM, elaborates upon imminent need for DNA test and
holds that DNA test should not be ordered as a matter of course.
While so doing, the Apex Court considers entire spectrum of
judgments on the issue. All those judgments are quoted by the
concerned Court to allow the application. Therefore, in that light
what would prevail is the judgments quoted hereinabove and not
the ones quoted in the impugned order. Heavy reliance is placed by
the concerned Court on the judgment in the case of NARAYAN
DUTT TIWARI which is considered by the Apex Court in IVAN
RATHINAM supra.
12. In partition disputes particularly, whether DNA test should
be permitted or otherwise is borne consideration by the coordinate
Benches of this Court.
12.1. A coordinate Bench of this Court in the case of
DAYANANDA GOWDA S.V. v. R. VENKATAPPA7, has held as
follows:
".... .... ....
12. The plaintiff has filed a suit for partition and separate
possession of all the suit schedule properties by metes and
bounds and to put the plaintiff in possession and enjoyment of
his 1/7th share in the suit schedule properties alleging that he is
the son of Venkatappa through his second wife Sundaramma.
The defendants produced number of documents to disprove that
he is not the son of Venkatappa through second wife. The trial
Court proceeded to hold that the plaintiff has specifically
pleaded that defendant No.2 is the legally wedded wife of
defendant No.1 and his mother Sundaramma was the second
wife. Therefore, burden is on the plaintiff to prove that his
mother Sundaramma was the second wife of defendant No.1-
Venkatappa. The plaintiff is not the biological son of defendant
No.1 as there is no exclusive proof regarding legitimacy as per
Section 112 of the Evidence Act. Further, the trial Court held
that burden is on the defendants to prove that the mother of the
plaintiff Sundaramma was the wife of one Rama Naika.
W.P.No.36322 of 2017 decided on 05-04-2019
13. The plaintiff also filed an application under Section
XXVI Rule 10-A read with sections 75(e) and 151 of CPC. The
trial Court has not come to a definite conclusion whether the
plaintiff is the son of defendant No.1-Venkatappa through
Sundaramma as alleged by the plaintiff and whether the
plaintiff's original name is Dhudya Naika son of Rama Naika and
Sundaramma was not the second wife of defendant No.1-
Venkatappa and she is the wife of Rama Naika. Without arriving
at any conclusion proceeded to reject the application. In view of
dispute with regard to relationship between the parties and the
plaintiff has produced certain documents to show that he is the
son of Venkatappa through second wife Sundaramma. The
defendants have also produced number of documents to prove
that he is the son of Rama Naika and Sundaramma is not the
wife of defendant No.1-Venkatappa. There is a serious dispute
with regard to the said relationship. In the absence of any proof,
in a suit for partition, the Court has to appoint a scientific
person to conduct DNA as sought for.
14. The learned counsel for the respondents has
relied upon the decision of the Hon'ble Supreme Court in
the case of Goutam Kundu Vs. State of West Bengal
reported in 1993 (3) SCC 418, wherein it is held that
normally the courts in India cannot order blood test as a
matter of course and also cannot be entertained and
unless there must be a strong prima facie case in that the
husband must establish non access in order to dispel the
presumption arising under Section 112 of the Evidence
Act. In the said case, maintenance was sought for against
the father of the child where he has disputed the
paternity of the child. Under those circumstances, the
Hon'ble Supreme Court held that the routine blood check
up should not be allowed and ultimately, it is for the
husband to dispel the presumption arising under Section
112 of the Evidence Act. The said case has no application
to the facts and circumstances of the present case.
15. In the instant case, unfortunately both
defendant No.1 - Venkatappa and alleged second wife
Sundaramma are dead. Now, the dispute between the
plaintiff and defendants No.2 to 4 the legal
representatives of defendant No.1-Venkatappa is that the
plaintiff claims to be the legal representative through
second wife. In the absence of any documents, the trial
Court ought to have allowed the application filed by the
plaintiff. In the absence of any material and any
admission made by the defendants, in the peculiar facts
and circumstances of the present case, the Court in order
to do justice between the parties has to order for
appointment of Court Commissioner for DNA test as
prayed for. The presumption under Section 112 of the
Evidence Act would not attract in the facts and
circumstances of the present case. If appointment of
Court Commissioner for scientific investigation of DNA
profiling of blood samples of plaintiff and defendant No.3
is ordered to prove the plaintiff's biological relationship,
no prejudice would be caused to the defendants.
Admittedly, defendant No.1-Venkatappa and alleged
second wife Sundaramma are also dead."
(Emphasis supplied)
12.2. The High Court of Kerala in the case of
GANGADHARAN v. SREEDEVI AMMA8, has held as follows:
".... .... ....
13. From the judgments above referred, this Court
notice that, there is absolutely no dearth of power for a
Court, be it civil, matrimonial or otherwise to direct the
DNA analysis, provided the outcome of the test would
prove/disprove one of the grounds based upon which a
party may either succeed or lose. However, the most
clinching test is the one as expatiated in Bhabani Prasad
Jena (supra), which is the test of "eminent need". As held
by the Hon'ble Supreme Court, in its quest to unearth the
truth, the Court can certainly direct to conduct DNA test.
However, the court has to exercise its discretion only
after balancing the interests of the parties and upon due
consideration whether the DNA test is eminently needed
for a just decision in the matter. The same cannot be
2024 SCC OnLine Ker 2316
directed as a matter of course or in a routine manner.
Instead, the Court has to consider diverse aspects; the
pros and cons of such order and also as to whether it is
possible for the Court to reach a logical conclusion
without use of such test.
14. This Court is also impelled to observe that, the
desirability of having a DNA test conducted would depend
upon the facts and circumstances in which it is sought for
and especially in the context of the relief prayed for. The
consideration to be received at the hands of the court for
an application to conduct DNA analysis differs from each
other (i) in a case where the husband alleges adultery,
where DNA analysis is sought for to prove such
allegation/ground of adultery, (ii) in a case where the
husband as a defense in matrimonial matter alleges non
access to disown the paternity of the child, (iii) in a case
where an application for DNA test is opposed disputing
the very existence of the marriage claimed. In Dipawita
Roy (supra), the Hon'ble Supreme Court in paragraph no.
13, specifically observed that, the judgments relied on by
the counsel for the appellant were on the pointed subject
of legitimacy of the child born during the subsistence of a
valid marriage. The situation will undergo a seachange
when a valid marriage, or for that matter, a marriage
itself is denied and disputed. This Court may wind up the
discussion by reiterating and underscoring the
requirement as laid down in Goutam Kundu (supra) and
also in Sharda (supra) that to exercise the power of
directing the conduct of a DNA test, the applicant has to
establish, not merely a prima facie case but a
strong prima facie case, and there should be sufficient
material before the Court, justifying a request for DNA
analysis being allowed.
15. Coming to the instant facts, although it is not
desirable at this stage of the suit to comment on the quality of
the evidence adduced, this Court is constrained to look into the
evidence adduced to some extent, to ascertain whether the
applicant/plaintiff had made out a strong prima facie case, so as
to allow Ext.P3 application for a sibling DNA test. One thing
which has to be borne in mind is that, what is being enquired
into is not whether the plaintiff is the daughter of Kuttikrishnan
Nair. Instead, the true question to be posed is whether the
marriage between Kuttikrishnan Nair and Madhavi Amma is
established as claimed in the plaint and further, whether the
plaintiff is a daughter born in that wedlock. One can probe into
the latter question only upon establishing the former. The
question is so posed since the plaintiff has no case under
Section 16 of the Hindu Marriage Act, as per the pleadings in
the plaint. Therefore, evidence as to the marriage between
Kuttikrishnan Nair and Madhavi Amma is what is essentially
required to be established in order to ascertain a prima
facie case, or for that matter, a strong prima facie case.
16. Having gone through the evidence adduced by PWs 1
to 5, this Court is of the prima facie opinion that, the plaintiff
could not establish a strong prima facie case in proving a valid
marriage between Kuttikrishnan Nair and Madhavi Amma. PW1
is none other than the plaintiff. Even in Ext.P3 application for
conducting DNA test, her version is that, she came to know
about the marriage between Kuttikrishnan Nair and Madhavi
Amma, only as her mother's version. The said knowledge of the
plaintiff is open to criticism as hearsay evidence. Another aspect
spoken to by the plaintiff is regarding her memory that she was
living with Kuttikrishnan Nair and Madhavi Amma upto the age
of five. The veracity of that version has to be cross checked with
the evidence adduced by other witnesses as well. It is relevant
to note that all other witnesses would admit in cross
examination that their knowledge about the marriage between
Kuttikrishnan Nair and Madhavi Amma is nothing, but hearsay.
Even the evidence adduced by PW5, the brother of the plaintiff,
could not vouchsafe the plaintiff's claim that Kuttikrishnan Nair
married Madhavi Amma and that the plaintiff is the daughter
born in that wedlock. This Court is not elaborating much on the
evidence adduced, as the same may have an adverse
consequence on the fate of the suit itself. Suffice to say that,
a prima facie case, much less a strong prima facie case, has not
been borne out to order a DNA test as sought for in Ext.P3.
17. Another aspect which weighs with this Court to
interfere with Ext.P12 order is the pleadings as contained in
Ext.P3 application to the effect that the impugned marriage took
place 81 years back, that no one who witnessed the marriage
are alive and that there exists no way to prove the marriage,
except through a DNA analysis. It appears that, the plaintiff is
completely misconceived in seeking a DNA analysis for the
afore-stated reasons. As already held by the Hon'ble Supreme
Court, the existence of a strong prima facie case is a sine qua
non to seek conduct of the DNA test. Here, in Ext.P3, the
plaintiff/applicant herself admits that there exists no evidence,
except the aspect sought to be proved by DNA analysis to prove
that the plaintiff is the daughter of Madhavi Amma through
Kuttikrishnan Nair and consequentially, their marriage. That
apart, it is questionable as to why the plaintiff did not choose to
raise her claim during the life time of her mother Madhavi
Amma, though Kuttikrishnan Nair passed away in the year
1987. The present suit was instituted when the plaintiff was
aged 74 and therefore, none else can be blamed for dearth of
evidence through those persons, who according to the plaintiff
had witnessed the so-claimed marriage. At any rate, the
resultant situation cannot be propounded as a reason to seek a
sibling DNA test.
18. It is of seminal important to note that, DNA analysis,
even if allowed, will not establish the marriage between
Kuttikrishnan Nair and Madhavi Amma. At best, it may prove
that the plaintiff is the daughter of Kuttikrishnan Nair. The proof
of the same, by itself, would not carry the plaintiff anywhere.
The prayer is one for partition. The claim is that, Kuttikrishnan
Nair married Madhavi Amma and plaintiff is their daughter. The
further claim is that, during the subsistence of the marriage,
Kuttikrishnan Nair maintained relationship with Lakshmi Appissi,
in which relation the defendants are born. The above aspect is
highlighted only to point out that, the plaintiff has no claim even
under Section 16 of the Hindu Marriage Act, as per the
pleadings. Now, assume for a moment, that such a plea is
permitted to be taken as an alternative one. Still, the existence
of a ceremonious/customary marriage is again a sine qua non to
maintain a claim under Section 16 of the Hindu Marriage Act.
See in this regard, a Division Bench Judgment of this court
in Jayachandran v. Valsala [(2016) 2 KLT 81].
19. In the light of the above discussion, this Court finds
that Ext.P12 order cannot be sustained. This court finds that,
one cannot seek DNA test to be done only in his/her attempt to
fish out evidence in support of his case. Unless and until the
applicant makes out a strong prima facie case, such an
application is not liable to be allowed. In arriving at the above
conclusion, this Court also considers the devastating effect [as
pointed out in Bhabani Prasad Jena (supra)] on the children of
Lakshmi Appissi (the defendants in the suit), more so, when all
the witnesses - except the plaintiff - would admit that Lakshmi
Appissi is believed to be the legally wedded wife of Kuttikrishnan
Nair by the people in the locality. This Original Petition
succeeds. Ext.P12 order is set aside. The trial court will now
proceed with the matter, in accordance with law, untrammelled
by any of the observations contained in this judgment."
(Emphasis supplied)
12.3. The High Court of Andhra Pradesh then in the case of
MEDIDA VEERAIAH @ VEERA REDDY v. MEDIDA VIJAYA
NARASIMHA RAO9 has held as follows:
".... .... ....
27. On consideration of the judgements referred above, it
is obvious that a DNA test can be ordered in appropriate cases
where there is necessity. It is also clear that a DNA test cannot
be ordered in a routine manner. The facts and circumstances
of each case have to be taken into consideration for
ordering DNA test. The parties have to bring their prima
facie evidence on record to show their relationship. If the
court is not satisfied with the prima facie evidence, then
the court may order DNA test in appropriate cases by
following the ratio laid down in the judgements referred
above. The court cannot merely order DNA test on mere
asking of the parties to decide the relationship. Generally
in criminal cases, and matrimonial offences, DNA test is
2018 SCC OnLine Hyd 380
being ordered. In cases like partition and civil disputes,
Courts are slow in ordering DNA test; the reasons being
that there is a presumption under section 112 of Indian
Evidence Act with regard to the paternity. The petitioner
has to come forward with specific denial of his paternity,
and his prima facie case to prove his paternity, and then
only he can ask the court for a DNA test. There are
disadvantages in ordering DNA test in some cases. The DNA test
asked in this case by the petitioner who claims to be son of
respondent No. 1. This is a case where the petitioner is raised
about 35 years. There must be prima facie some material to
connect the relationship with the petitioner and the
1st respondent. It is obvious that the trial Court has not
considered any prima facie case brought by the petitioner on
record. There is no discussion with regard to the relationship
between the petitioner and respondent No. 1 basing on any
documents. The trial Court has merely passed an order stating
that as there is a dispute between the petitioner and respondent
No. 1 with regard to paternity, the DNA test is ordered. In the
light of the above decisions of Hon'ble Supreme Court held that
a DNA test cannot be ordered in a routine manner.
28. This is a case where the trial Court has very casually,
in a routine manner, ordered DNA test, without considering the
prime facie case of the petitioner, without discussing the
material placed before the Court, and the contents of the
pleadings therein. It is also pertinent to note that the trial Court
has not appointed a Commissioner for the said purpose as per
the provisions under Order XXVI Rule 10, or Rule 10A of CPC.
There are no specific directions to the Commission as to what he
has to do for conducting a DNA test. There are no reasons given
for allowing the petition filed for seeking DNA test. The order
passed by the trial Court is not based on any plausible
reasoning.
29. It is also pertinent to note that the personal liberty of
an individual is at stake in cases of ordering DNA testing. The
consent of the party whose blood samples are to be drawn is
required. The court may not, in all cases, direct taking of blood
samples from the respondent without his consent. At this
juncture, it is appropriate to see the standard of proof that is
required in each case. In a criminal case the standard of proof is
beyond reasonable doubt. In a civil case, it is preponderance of
probabilities. Therefore, the standard of proof in a criminal case
is different from the standard of proof in a civil case. As far as
the ordering of DNA test is concerned, in my opinion, the Court
has to see the requirement of standard of proof; in civil cases,
the standard of proof being preponderance of probabilities.
When there is a presumption under Section 112 of Evidence Act,
the parties have to produce evidence to prima facie show that
the presumption can be invoked. The parties may lead evidence
to rebut the said presumption as the presumption is a
rebuttable presumption. At this juncture the reference of
Section 112 of the Evidence Act assumes importance. Section
112 of Evidence Act reads as under;
Birth during marriage, conclusive proof of
legitimacy.--
The fact that any person was born during the
continuance of a valid marriage between his mother
and any man, or within two hundred and eighty
days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it can be shown
that the parties to the marriage had no access to
each other at any time when he could have been
begotten.
30. To prove paternity, there is a presumption in
favour of the person who is claiming paternity. The
petitioner has to bring on record the material to raise the
said presumption. In case the petitioner fails to bring any
material prima facie to show that there is a nexus
between the respondent No. 1 and the petitioner's
mother, there is no point in ordering a DNA test. A
stranger who is not having a connection cannot be
directed to undergo a test. Therefore, the petitioner has to
come out with a prima facie case that there is a marriage
between his parents, or that there is a relationship between his
parents which led to his birth. In the instant case, there is no
material considered by the trial Court as to the nature of
relationship between the petitioner's mother and the
1st respondent. The 1st respondent is denying his relationship
with the mother of the petitioner; and in such a case the burden
is on the petitioner to show that there is prima facie evidence to
rebut the presumption under Section 112 of the Evidence Act.
31. In the instant case, the petitioner is raised
about 35 years. There must be lot of material available to
him to prima facie show that he is the son of the
1st defendant. The trial Court ought to have considered all
the material to come to a conclusion that there is prima
facie relationship between the petitioner's mother and
the respondent No. 1 before ordering DNA test. Without
there being any formal proof of relationship or connection
between the parties, it does not appear that there is any
reason for ordering a DNA test. In such cases if DNA test
is ordered without there being any prima facie proof of
her relationship between the parties in a case like this
where the petitioner claims that he's 35 years old,
without producing any record that he is related to the
defendant No. 1, it is not appropriate to order a DNA
test."
(Emphasis supplied)
13. On a blend of the judgments rendered by the Apex Court
and different High Courts, what would unmistakably emerge is, the
caution of the Apex Court followed by other High Courts that
compelling such tests without imminent need, imperils not only the
sanctity of marriage, but legitimacy of the child and also becomes
violative of the fundamental rights to privacy and dignity, as
obtaining under Article 21 of the Constitution of India.
14. The learned counsel for the respondents/plaintiffs places
reliance upon a judgment rendered by the coordinate Bench, which
affirms DNA Test being allowed by the concerned Court in the case
of MOHAMMED REFEEQ v. S. MOHAMMED FAIROZ AHAMED
rendered in W.P.No.52855 of 2019 decided on 10-01-2024. The
person whose blood sample was sought to be taken for DNA test
had voluntarily filed an application to know the biological root. The
said judgment is distinguishable without much ado, as defendants 1
and 3 have objected to the application before the concerned Court.
15. In the light of the foregoing analysis, the following
conclusions would emerge:
• Section 112 of the Indian Evidence Act is steeped in
the maxim pater est quem nuptiae demonstrant - the
father is he whom the marriage indicates, which would
mean the presumption of legitimacy of a child born
during lawful wedlock.
• The blood test - DNA test must be permitted only in
terms of the rigor of Section 112 of the Evidence Act,
which would be a demonstrable non-access during the
period of birth of the child, as the presumption under
Section 112 is rooted in public morality and societal
peace.
• The Court answering an application must bear in mind the
interwoven delicate balance between the test, right to
privacy and dignity, as ordained in the Constitution of India.
• The concerned Court must not for the asking permit DNA
test, unless the condition stipulated in Section 112 is fulfilled,
which would be pleading and proving of non-access at the
relevant point in time.
• In the case at hand, plethora of marital disputes existed
between defendants 1 and 2 for ages. The child is born from
the said wedlock. The concerned Court has blissfully ignored
this fact.
• Therefore, the Courts answering the application shall strictly
adhere to the law, as narrated in the course of the order.
16. Tested on the anvil of the preceding analysis, the
concerned Court ignores every tenet; there was no imminent need
for conducting a DNA test; the order ignores the purport of Section
112 of the Indian Evidence Act and presumption of paternity is
given a go-bye. No material is placed before the Court depicting
non-access at the time of birth. In the absence of any pleading of
the kind, the concerned Court has treated the DNA test as a
frolicsome act and ordered as a matter of course. Right to privacy
and dignity is lost sight of. Therefore, on all the aforesaid
circumstances, the order of the concerned Court is rendered
unsustainable and unsustainability would lead to its obliteration.
17. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The order dated 05-04-2025 passed by the Senior Civil
Judge & JMFC, Channarayapatna on the application filed
by the plaintiffs under Order XXVI Rule 10A of the CPC
in O.S.No.89 of 2016 stands quashed.
(iii) All consequential proceedings, including the purported
DNA examination and any report prepared thereto, are
all declared null and void, in the eyes of law.
(iv) Registry is directed to circulate this order to the
concerned Courts, to bear in mind the observations
made in the course of the order, while answering an
application filed seeking DNA test.
This Court places its appreciation for the able assistance
rendered by Miss. Samriddhi Shenoy, Law Clerk cum Research
Assistant attached to this Court.
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ
