Rohit Shekhar and Narain Dutt Tiwari DNA Test Order passed by the Delhi High Court - Naresh Kadyan

IN THE HIGH COURT OF DELHI AT NEW DELHI FAO(OS) No. 44/2011 and CM 1795/2011 07.02.2011 Narayan Dutt Tiwari ....Appellant through Mr.Jayant Bhushan, Sr.Adv., Mr.Abhinav Vashisht, Sr. Adv. with Mr. Atul Sharma, Mr. B.B. Gupta, Mr.Anil

Sharma, Mr. Abhishek Agarwal, Mr. Deepayan Mandal, Mr. Vinod Kumar, Mr. Manohar Malik and Mr. Abhishek Misra, Advs. versus Rohit Shekhar and Anr. .....Respondent through Mr.Sudhir Nandarajog, Sr. Adv. with Mr. S. Santhaman Swaminadhan, Mr. Kirtiman Singh, Mr. T. Singhdev and Ms. Surbhi Mehta, Advs. for Respondent No.1 Date of Decision : February 07, 2011 CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether reporters of local papers may be allowed to see the Order? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Order should be reported in the Digest? Yes ORDER 07.02.2011

This Appeal assails the Order of the learned Single Judge allowing the Plaintiff's application seeking a direction to the first Defendant to furnish blood samples for enabling DNA testing to be carried out to ascertain whether the Plaintiff is the biological son of Defendant No.1. By means of the impugned Order, the first Defendant has been directed to furnish requisite samples to facilitate DNA testing which is to be carried out by the Centre for Cellular and Molecular Biology (Constituent Laboratory of the Council of Scientific Industrial Research, Government of India, Habsiguda Uppal Road, Hyderabad, Andhra Pradesh). The learned Single Judge has himself summarized all the legal aspects of the dispute in these words:44. (i) The conclusive proof standard mandated by Section 112 of the Evidence Act, read with Section 4, admits an extremely limited choice before the Court, to allow evidence of ``non access'` to a wife by the husband, who alleges that the child begotten by her is not his offspring; it is designed to protect the best interests of the child, and his legitimacy' (ii) A ``paternity'` action by the son or daughter of one, claiming the defendant to be his or her biological father, filed in Court, particularly after the plaintiff as in this case, attains adulthood, or claims paternity, for other reasons, (such as non-consensual sexual relationship the basis of facts, and on the basis of the child?s rights/either under Section 125 Cr.PC, or in a suit for declaration or for maintenance) cannot be jettisoned by shutting out evidence, particularly based on DNA test reports, on a threshold application of Section 112; the Court has to weigh all pros and cons, and, following the ruling in Kundu and Jena (supra), on being satisfied about existence of ``eminent need'` make appropriate orders; (iii) The development of statute law � through enactment of the Hindu Adoptions and Maintenance Act, 1956, the Criminal Procedure Code, 1973 and the Family Courts Act, 1984, read together with a child's right to knowledge about her or his natural parentage has added a new dimension where the concept of paternity or a claim, cannot be ousted by Section 112 and concerns of legitimacy, underlying it.

(iv) On the facts of this case and the materials on record, the Court is

satisfied that there is eminent need to direct the first defendant to furnish his blood samples, for the purpose of DNA testing; Respondent No.1 has filed a Suit for Declaration and Permanent Injunction pleading, inter alia, that he has no intention of claiming any benefit, financial or otherwise, out of his relation with the Appellant. It has been pleaded that the Plaintiff's mother, Defendant No.2, stayed with her father as she was estranged from her husband. Defendant No.1 is stated to have convinced the Plaintiff's mother that if she bore him a child, he would divorce his wife who had not had children; that although in the official records the Plaintiff was shown as the son of Shri Bimal Prasad Sharma, but in actuality the Plaintiff was treated by the Appellant as his son. It has further been averred in the Plaint that the ``Plaintiff finds it very difficult to bear the injustice that has been done to him and also he refused to bear the burden of illegitimacy that has been put to him due to the irresponsible and inhuman conduct'` of the Appellant. It has been recorded that the Plaintiff is willing to go through a DNA test and that the Appellant should do likewise. The Prayers in the Plaint are that a Decree for Declaration be passed, declaring the Plaintiff as the naturally born son of the Appellant which the Appellant should acknowledge. The Plaint is accompanied by an application praying that by an ad interim order the Appellant may be directed to submit himself for a DNA test; it is this application which has been allowed in the impugned Order. We have heard the parties in complete detail and, therefore, proceed to decide the Appeal. Mr. Jayant Bhushan, learned Senior counsel for the Appellant, has relied on Goutam Kundu �vs- State of West Bengal, (1993) 3 SCC 418, Kamti Devi �vs- Poshi Ram, 2001(5) SCC 311, Sharda �vs- Dharampal, 2003(4) SCC 493, Banarasi Das �vs- Mrs. Teeku Dutta, 2005 (4) SCC 449, Sham Lal �vs- Sanjeev Kumar, 2009 (12) SCC 454, Ramkanya Bai �vs- Bharatram, 2010 (1) SCC 85 and Bharat Matha �vs- R. Vijaya Ranganathan, 2010 (11) SCC 483. Sharda was delivered by a Three-Judge Bench which considered as many as forty-five precedents, including Kundu and Ningamma �vs- Chikkaiah, AIR 2000 Karnataka 50. In paragraph 39, the Three-Judge Bench in Sharda opined that ``Gautam Kundu is, therefore, not an authority for the proposition that under no circumstances the court can

direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such direction should ordinarily be made if it is in the interest of the child'` (underlining inserted). After a detailed analaysis of the decisions rendered on this point, their Lordships enunciated the law in the following words:80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy. 81. To sum up, our conclusions are:1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him. A detailed discussion of earlier decisions, which are of smaller Benches, will only lead to prolixity which should be zealously avoided. However, in Sham Lal, a Two-Judge Bench has held that once the validity of marriage is proved and parents have access to each other, adultery of wife which though amounts to very strong evidence, is, by itself, not quite sufficient to repel the presumption of legitimacy of children born from such wedlock and that is undesirable to enquire

into paternity of a child in such cases. The attention of the Court was not drawn to Banarasi Das which would have held sway over their Lordships. That apart, we do not find Sham Lal as an impediment in the path of ordering the Appellant to provide requisite samples for carrying out a DNA test. Their Lordships were called upon to construe Section 112 of the Indian Evidence Act, 1872 in altogether different circumstances. There was an allegation of adultery against the wife, upon which the accusation of the children's illegitimacy was predicated. This is not the position which obtains before us. The very persons whom the law intends to protect from calumnious accusations are the supplicants

for initiating and conclusively concluding the inquiry. In Ramkanya Bai, attention of another Two-Judge Bench was drawn to Section 114 of the Indian Evidence Act. The High Court directed DNA testing of the father and the child. It was noted that no allegation had been made by the husband that the child was born from an extramarital relationship of the wife/mother. This decision is of no avail to the Appellant. Learned Senior Counsel for the Appellant has conceded that there is no direct precedent on the conundrum before us. This is because the facts with which we are confronted are singular and unique. It is the son bolstered by his mother who asserts that he is illegitimate since it is the Appellant who is his biological father. The Plaintiff's `legal' father has already filed his Affidavit stating that at the relevant time he did not have access to the Plaintiff's mother (Defendant No.2). Even more significant is the fact that this Affiant, the putative father, has stated that he has carried out a DNA test which has determined that he is not the father of the Plaintiff. The Plaintiff's mother has also adopted the same position, namely, that her son was not begotten by her erstwhile husband and that it is the Appellant who is the Plaintiff's natural father. Placed in these circumstances, it appears to us that Section 112 of the Indian Evidence Act, 1872 is not an insurmountable obstacle in the path of the Plaintiff. This provision of law is aimed at protecting a child from scurrilous accusation of his bastardy and at the same time insulating a woman from the ignominy of accusation of her chastity and infidelity through the avenue of the legitimacy of her child. The accuracy of a DNA test was not even imagined at the time when the law was formulated; the prevailing wisdom was that only the mother could vouchsafe who was the father of her child. Section 112 provides that if a child is born during the continuance of a valid marriage, that fact alone shall be conclusive proof of his legitimacy. Having stated so, Section 4 of the Indian Evidence Act, 1872 which defines ``conclusive proof'` as � ``when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it'`, it is indeed suprising and incongruent that an exception to the conclusivity is provided in the Section itself, namely, that if it can be shown that the parties had no access to each other, at the relevant time a different conclusion can be arrived at. The

conclusivity is, therefore, immediately diluted to a presumption at best. It appears to us that the intendment behind Section 112 renders it irrelevant to the facts of the present case since the protection which the statute seeks to extend to the mother and child is irrelevant and otiose because of the Suit/Plaint itself. The mother, Defendant No.2, herself pleads that the Plaintiff is the natural son of the Appellant; and the Plaintiff pleads to the very same effect. Even if the intendment behind the Section may be perceived as of nebulous nature, it must be kept in perspective that both the mother and the son on the one part and the putative father of the Plaintiff on the other can jointly maintain that the Plaintiff is the begotten son of the Appellant. It is trite that rule of evidence must give way to admissions made by parties to a lis since the former are mere tools for arriving at the truth which is subsumed by

an admission of a party. It is not anybody's case that Section 112 has the father at its fulcrum. Learned Senior Counsel for the Appellant has laid great stress on the word ``access'`, especially in the circumstances where the mother admittedly stayed on the Ground Floor and the Plaintiff's father on the First Floor. It is contended on behalf of the Appellant that access in view of the so-called cohabitation must be presumed. We cannot lose sight of the fact that although they had not been divorced from each other at the time when the Plaintiff was conceived, the Plaintiff's parents have jointly stated that they did not have sexual access to each other. What the Section refers to is access of a sexual nature and not merely of habitation together. Section 112 of the Indian Evidence Act, 1872, therefore, does not bar a Trial on the allegations articulated in the Plaint. The learned Single Judge has arrived at the correct conclusion in this regard. A very self-serving reading of the Petition for Dissolution of Marriage between Defendant No.2 and Mr. Bimal Prasad Sharma has been carried out on behalf of the Appellant by drawing our attention to the address given by them in that motion. In paragraph 4 of the said, Petition filed in 1966, the two parties have stated that they ``have been living separately since 1970 at different addresses in Delhi and have not had any marital relations or cohabitation since then. However, from 1978 onwards the parties have been residing on different floors of C-329, Defence Colony, New Delhi-24'`. It is thus not logically

possible to contend that a new case has been presented to the Court by way of the present Plaint. We also affirm the construction given by the learned Single Judge to Section 112 of the Indian Evidence Act to the effect that its object was to determine legitimacy and not paternity and that the intendment behind the Section was ``safeguarding the interests of the child by securing its legitimacy'`. We cannot lose sight of the fact that the mother and the legal father of the Plaintiff have both admitted the fact that there was no sexual access at the relevant point of time between the parties. Such an admission, notwithstanding any other evidence, is sufficient proof in law to rebut the presumption under Section 112 of the Indian Evidence Act, as the knowledge of such an intimate fact can lie only with the mother and her erstwhile husband and the admission on part of both these parties of such fact in the best evidence that can be adduced. Kundu itself speaks of the rebuttable nature of the presumption contained in Section 112 of the Evidence Act. The learned Single Judge has rightly observed that the protective jurisdiction of the Court is not imperiled since declaration sought is at his/her behalf about the true paternity. The learned Single Judge has so aptly observed that � ``The protective cocoon of legitimacy, in such case, should not entomb the child's aspiration learn the truth of her or his paternity'`. In the course of hearings, we had suggested to learned Senior Counsel for the Appellant that it would be expedient for him to provide his samples for DNA Testing on the precondition that it would not be immediately forwarded for analysis. It was in this regard that learned Senior Counsel for the Appellant has contended that in the event of the Appellant's death, the Suit itself would be liable to be dismissed. It appears to us that this is not the inevitable consequence that would legally flow from the Plaintiff's demise. Indeed, this is not so since the Plaintiff prays for a declaration of his status from which no consequences adverse to that of the Appellant would flow. We do not think it necessary to venture into the legal labyrinth for the simple reason that the relevant consideration should be whether it would be legally justified for the Court to defer the conclusion of evidence to a future date, especially where there is strong likelihood that it would be lost forever, thereby rendering the Suit infructuous. Two provisions of the Code of Civil Procedure, 1908 (CPC for short) immediately come to mind. Firstly, Order XVIII Rule 16 of the CPC which

provides that where a witness is about to leave the jurisdiction of the Court,

or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness. This power can be exercised suo moto. Order XXVI Rule 4 of the CPC empowers a Court to issue a commission for the examination of any person who is about to leave the limits of its jurisdiction before the date by which he is required to be examined. These are indicative of the powers of the Court nay its duties in recording evidence without necessarily waiting for the normal Trial. We find support for our view in the Judgment of the Ram Dhir Prasad �vs- Ram Sewak Lal, AIR 1978 Patna 218. While that may be the objective of the Defendant/Appellant, the Court must always be vigilant to arrive at the truth and take protective and even proactive steps in this direction. Since the Plaintiff had filed an application under Order XXXIX Rules 1 and 2 of the CPC, we must also consider whether the three constituents, which must co-exist, have been met. The foregoing discussion adequately manifests the existence of a prima facie case in favour of the Plaintiff. So far as balance of convenience is concerned, the furnishing/drawing of samples is also avowedly in favour of the Plaintiff and against the Defendant. Finally, irreparable loss is bound to visit the Plaintiff if orders under the application are not immediately passed inasmuch as the Suit itself may be rendered infructuous and vital evidence may be lost forever. Accordingly, we hold that the Appeal is devoid of merits and the same is dismissed with costs of ` 25,000/-. CM No.1795/2011 is also dismissed.

VIKRAMAJIT SEN, J.

SIDDHARTH MRIDUL, J.

February 07, 2011 tp