IA No. 10394/2011 in CS(OS) No. 700/2008. Case: Rohit Shekhar Vs Shri Narayan Dutt Tiwari and Anr.. High Court of Delhi (India)
| Case Number | IA No. 10394/2011 in CS(OS) No. 700/2008 |
| Counsel | For Appellant: P.S. Patwalia, Sr. Adv., Vedanata Verma and Manu Aggarwal, Advs. and For Respondent: Bahar U. Barqi and Pramod Kr. Sharma, Advs., Gaurav Mitra, Adv. |
| Judges | Gita Mittal, J. |
| Issue | Evidence Act, 1872 - Sections 4, 9, 10A, 17(4), 19(2), 27, 45, 112, 114 and 144; Criminal Procedure Act, 1997; South Africa Children Act, 2005 - Sections 10 and 37; Family Proceeding Act, 1980 - Sections 4 and 54; Gurdian Act, 1968 - Section 10B; Family Law Reform Act - Section 21(3); Hindu Marriage Act, 1955; Hindu Marriage Act, 1956 - Section... |
| Judgement Date | September 23, 2011 |
| Court | High Court of Delhi (India) |
Judgment:
Gita Mittal, J.
1. The present application displays a blatant refusal by a party to the litigation to comply with the court direction made in accordance with law to furnish a blood sample for DNA testing which would enable authoritative adjudication on the real issue in the matter. For this purpose, the Defendant No. 1 has filed IA No. 10394/2011 dated 30th May, 2011 seeking the following prayers:
(a) direct the Plaintiff or the learned Deputy Registrar of this Court or any other authority or officer not to pressurize, coerce, compel or force the Petitioner in any manner to involuntarily provide blood and/or tissue sample for analysis.
(b) Direct that till the abovementioned prayer is finally considered by this Court, the order of the learned Deputy Registrar directing the applicant to deliver blood sample on 1 Jun 2011 may kindly be deferred or kept in abeyance.
2. Before considering the application on the merits of the submissions made before this Court, it is necessary to consider certain essential facts which emerge from the record.
Factual Narration
3. The Plaintiff has filed the suit inter alia seeking declaration that the Plaintiff is the naturally born son of the Defendants and that the Defendant No. 1 is the father of the Plaintiff. It is asserted that, though he was born to Smt. Ujjwala Sharma, Defendant No. 1 whilst her marriage to Sh. B.P. Sharma subsisted, the Plaintiff was not born from their wedlock. Reliance in this behalf has been placed on the report of blood samples drawn from Shri B.P. Sharma and DNA profiling which have been compared with the DNA profiling of the Plaintiff's blood sample which report reflects that Sh. B.P. Sharma cannot be his (the Plaintiff's) biological father. Besides the report, the Plaintiff also relies upon a joint affidavit by himself and Sh. B.P. Sharma stating that such blood samples were furnished voluntarily and the admission by Sh. B.P. Sharma in the divorce petition filed by him and Smt. Ujjawala Sharma-Defendant No. 2.
4. The Plaintiff has categorically asserted that he was born from an extramarital relationship between the Defendants. In this regard, he places reliance on the proximity between the parties in the plaint and relies on photographs which according to the Plaintiff manifest that the Defendants as well as the Plaintiff shared an intimate relationship. In her written statement the Defendant No. 2-the Plaintiff's biological mother supports the Plaintiff.
5. The Defendant No. 1 does not dispute that the Plaintiff is the biological son of the Defendant No. 2, but denies relationship or intimacy with her as well as the Plaintiff.
6. During the pendency of the suit, the Plaintiff filed IA No. 4720/2008 on 11th April, 2008 seeking a direction to the Defendant No. 1 to submit to DNA testing. This application though opposed by the Defendant No. 1, was allowed by the detailed judgment dated 23rd December, 2010 wherein the court inter alia rejected the pleas of the Defendant No. 1 that the birth of the Plaintiff on 15th February, 1979 during the subsistence of the marriage of Dr. Ujjawala Sharma and Sh. B.P. Sharma invited an absolute presumption under Section 112 of the Evidence Act.
7. The following directions were issued by the judgment dated 23rd December, 2010:
45. In view of the above conclusions, the application has to succeed. The parties or their counsel are directed to appear before the Joint Registrar on 8th February, 2011. The Joint Registrar shall obtain particulars and details to facilitate the DNA testing of the first Defendant; the said Defendant is directed to furnish such sample on a date and time to be designated by the Joint Registrar, by taking or drawing appropriate samples after ascertaining the details from the concerned accredited agency i.e. Centre for Cellular & Molecular Biology (Constituent Laboratory of the Council of Scientific Industrial Research, Government of India, Habsiguda Uppal Road, Hyderabad -500 007, Andhra Pradesh, India. The said institution shall furnish the report to this Court within six weeks of receiving the samples.
8. The Defendant No. 1's challenge to the order dated 23rd December, 2010 by way of an appeal being FAO(OS) No. 44/2011 was dismissed by the judgment dated 7th February, 2011.
9. The Defendant No. 1 has assailed the judgments dated 23rd December, 2010 and 7th February, 2011 before the Supreme Court of India by way of a special leave petition being SLP (Civil) No. 5756/2011. In the present application, the Defendant No. 1 admits that by the order dated 18th March, 2011 notice has been issued in SLP(Civil) No. 5756/2011 filed before the Supreme Court, however the Defendant No. 1's prayer for stay stands rejected.
10. The present application has been filed by the Defendant No. 1 on the submission "that the Plaintiff had not placed any material which could in any manner indicate that the Plaintiff was the son of the Defendant herein". The Defendant No. 1 has premised the application on a reproduction of Section 4 and Section 112 of the Evidence Act.
The Defendant No. 1 has put forth the following reasons for the application:
(i) no useful purpose would be served to subject Defendant No. 1 to the test
(ii) final relief cannot be granted to the Plaintiff because of Section 112 of the Evidence Act
(iii) no sample can be obtained from the Defendant No. 1 per force without his express consent or else it would violate fundamental rights of the Defendant No. 1 protected under Article 21 of the Constitution.
(iv) for the above reasons, not to pressurise, coerce or force the Defendant No. 1 to provide blood and/or tissue sample for DNA testing
11. The Defendant No. 1 has also placed reliance on the judgment of the Supreme Court in (2001) 5 SCC 311 Kanti Devi v. Poshi Ram on the provisions of Section 112 of the Evidence Act. Sh. B.U. Barqi, Advocate appearing on behalf of Defendant No. 1 has further contended that despite the directions made by the court, the Defendant No. 1 cannot be called upon to give his sample. He has sought to urge that the same is the correct reading of the law laid down by the Supreme Court in AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal and AIR 2003 SC 3450 Sharda v. Dharmpal. Placing reliance on the observations of the Apex Court in para 18 of the judgment in Goutam Kundu (supra), it has been argued that not only could the Defendant No. 1 be not compelled to give samples but also no adverse inference could be drawn against him for not doing so.
Learned Counsel categorically submits that in view of law laid down in (2010) 7 SCC 263 Selvi v. State of Karnataka, no sample could be obtained from the Defendant No. 1 per force without his express consent.
12. Mr. P.H. Patwalia, learned senior counsel appearing for the Plaintiff has contended that no reply to this application was necessary. Consequently learned Counsels were orally heard in the matter on this application. Learned senior counsel urges at great length that given the judicial pronouncements of the Supreme Court and the adjudication by this Court in the judgment dated 23rd December, 2010, the Defendant No. 1 has no option in the matter.
13. Opposing this application, Mr. Patwalia, has further contended that the application is malafide and an abuse of the process of the court. It is vehemently urged that the order passed by this Court has been sustained in appeal and even the Supreme Court has refused stay thereof to the Defendant No. 1. It is urged that directions having been made, the Defendant No. 1 has no option but to comply with the same unless the direction is modified or stayed by the court. It is urged that the Defendant has to be forcibly confined and a sample compulsorily extracted from him.
14. Right at the outset it was pointed out to counsel for the Defendant No. 1 that the pleas on which the present application is premised have been heard, considered and rejected by the judgments dated 23rd December, 2010 and 7th February, 2011 and that it was not open for the Defendant No. 1 to re-agitate the issues which stand decided.
Mr. Burqi has insisted that he wishes to deal with three pronouncements of the Supreme Court which have not been placed or considered before this Court for the purposes of the Defendant No. 1's submission that he cannot be compelled to provide a sample for DNA testing.
15. This application therefore raises the question as to whether a person can be physically compelled to give a blood sample for DNA profiling in compliance with a civil court order in a paternity action? If it were held that the same was permissible, how is the court to mould its order and what would be the modalities for drawing the involuntary sample? The justifiability of the refusal has to be tested against the Plaintiff's rights which are involved. As a corollary, the impact of the affect of a refusal to comply with the court direction has to be answered. In case an adverse inference was to be drawn, what is the nature of the inference? The role of the court in discovering the truth having made the directions, and the parameters of exercise of jurisdiction by a civil court are also in issue.
Whether the judicial pronouncements in AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal; AIR 2003 SC 3450 Sharda v. Dharmpal; (2001) 5 SCC 311 Kanti Devi and Anr. v. Poshi Ram have been overlooked
16. First and foremost, it is necessary to deal with the misconceived submissions of learned Counsel for the applicant that precedents have been overlooked in on the judgment dated 23rd December, 2010. Mr. Burqi has firstly submitted that this Court had failed to consider the judgment of the Supreme Court reported at AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal. In this regard, I find that in the order dated 23rd December, 2010 my learned brother S. Ravindra Bhat, J, has observed as follows:
6. The Plaintiff submits that the Court has power under Section 75 (e) of the Code of Civil Procedure...
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