Punjab-Haryana High Court
Ajaib Singh vs Smt. Surjit Kaur on 28 January, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR No.602 of 2014
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.602 of 2014
Date of Decision: 28.01.2014
Ajaib Singh ..... Petitioner
Versus
Smt. Surjit Kaur
... Respondent
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. D.R. Punia, Advocate,
for the petitioner.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 27th November, 2013 passed by the learned Civil Judge (Senior Division), Phillaur whereby the petitioner has been ordered to undergo a DNA profile test. The complaint is that the test has been ordered without consent.
Briefly stated, the facts are that the petitioner is plaintiff No.1 amongst eight plaintiffs in a suit for declaration to the effect that they are owners in possession of the estate of Rajwant Singh and the sole defendant Smt. Surjit Kaur respondent herein be restrained from interfering in the peaceful possession of the suit land. It is pleaded that the respondent Smt. Surjit Kaur claims herself to be daughter of Kartar Kaur @ Karam Kaur and Rajwant Singh father of the petitioner, plaintiff No.1 Ajaib Singh. Smt. Mittal Manju 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -2- Surjit Kaur pleads that her parents lived in Pakistan before partition of India where the mother died. Later on, Rajwant Singh married one Gurmej Kaur and shifted to India and settled in village Tehang in Tehsil Phillaur, District Jalandhar. It is pleaded that respondent Surjit Kaur had filed a suit for mutation of land in her favour in the Court of SDM-cum-Assistant Collector Ist Grade, Phillaur. In those proceedings she was unable to produce any documentary evidence to prove herself as daughter of Rajwant Singh. The mutation was sanctioned in favour of the beneficiaries of the Will executed by Rajwant Singh, father of the petitioner.
Aggrieved by the order dated 04th August, 2009 sanctioning mutation in favour of the petitioner etc. Surjit Kaur preferred an appeal before the Deputy Commissioner, Jalandhar. The appeal was dismissed on 01st April, 2011. Having remained unsuccessful Surjit Kaur filed an application before the trial Court for seeking permission to conduct the DNA profile test of Surjit Kaur to match it with Ajaib Singh. The learned trial Court had allowed the application and has ordered DNA profile test to be conducted of the petitioner and Surjit Kaur. It is this order dated 27th November, 2013 which has been challenged in this petition.
It is argued that there is no tangible evidence or document before the trial Court or any Court to show that Surjit Kaur is the daughter of Rajwant Singh. The stage of the suit discloses that the evidence of the petitioner had been concluded and the case is now fixed for evidence of defendant Surjit Kaur.
It is argued that a person cannot be compelled to subject himself to DNA profile test without his consent as it would amount to violation of Mittal Manju 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -3- his right against self-incrimination. Learned counsel relies on a decision of the learned Single Judge of the Madras High Court in re: Veerapan vs. Ms. Shanmuga Devi, 2011(1) RCR (Criminal) 664. In this case, the petitioner before the Madras High Court was facing a charge for commission of offences under Ss.417 and 376 of the Indian Penal Code. A child was alleged to have been born to the accused and complainant out of wedlock, and at the fag end of the trial, the complainant had made an application under S.53 of the Code of Criminal Procedure, 1973 praying that the child and the accused be sent for DNA profile test. The learned Judge relied on judgments of the Supreme Court and the High Courts of Madras and Karnataka and turned down the request for DNA profile test on the ground of violation of standard of "substantive due process" which is required for personal liberty and protection of the right against self-incrimination and subjecting an accused to such a test can have adverse consequences of penal and non-penal nature. For these reasons, the order of trial Court directing the accused to subject himself for DNA profile test was set aside.
In re: Banarsi Dass vs. Teeku Dutta (MRS) and another, (2005) 4 Supreme Court Cases 449 the Supreme Court dealt with a case arising out of the Indian Succession Act for issuance of a succession certificate. The Court observed that a DNA profile test is not to be directed as a matter of routine. It can be directed only in deserving cases. The conclusiveness of presumption under S.112 of the Evidence Act, 1872 cannot be rebutted by the DNA profile test. The Supreme Court held that proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption. The Court did not find that it is deserving case to Mittal Manju 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -4- order such test in an application for grant of a succession certificate since such certificate only furnishes the grantee with authority to collect the debts of the deceased, to make and allow the debtors to make payments to him without incurring any risk. Thus, the object of the said certificate under S.372 of the Indian Succession Act, 1925 is to facilitate the collection of debts and to regulate the administration of succession and to protect persons who deal with the representatives of the deceased. A succession certificate does not establish right, title or interest in immoveable property. The case is distinguishable on facts from the present case.
In re: Jayaprakash vs. Nisha, 2013 (3) Ker L.J. 85 the learned Single Judge of the Kerala High Court considered a case involving legitimacy or paternity of a child when in issue, then the DNA profile test need not be ordered as a matter of routine in all cases and a distinction has to be drawn between 'legitimacy' and 'paternity' of the child. Legitimacy can be established by legal presumption while it is desirable to establish paternity by DNA profile test particularly when both parties agree. In the present case, there is no agreement between the parties to subject themselves to the DNA test.
A case directly in point is in re: Rohit Shekhar vs. Narayan Dutt Tiwari and another, AIR 2012 (Delhi) 151 where the Division Bench of the Delhi High Court upheld in first appeal the directions issued by the learned single judge granting the claimant access to the respondent to submit to the DNA profile test and give his blood sample to establish paternity with the claimant in proceedings arising out of a paternity suit. The Division Bench held as under:-
Mittal Manju2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -5-
"10. The learned Single Judge, in the impugned judgment, has framed the following question:
Whether a pereson 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?
11. The impugned judgment though running into 109 pages, but the ratio thereof is, that though a matrimonial Court and the Civil Court has the implicit and the inherent power to order a person to submit himself for medical examination and to issue a direction to hold a scientific, technical and expert investigation but if despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court is entitled only to take the refusal on record to draw an adverse inference therefrom. Reliance in this regard is placed on Sharda (supra). It is also observed that physical confinement for forcible drawing of blood sample or sample of any other bodily substances is not envisaged in any statutory provision governing civil legislation under any tenet of justice. The learned Single Judge has observed that mandatory testing upon an unwilling person would entail an element of violence and intrusion of a person's physical person and may leave irreparable scars and is unwarranted and impermissible under Article 21 of the Constitution of India. It was thus concluded that the respondent no.1 could not be physically confined for the purpose of giving a blood sample and to ensure compliance of the order dated 23rd December, 2010.
12. The Apex Court undoubtedly in Sharda vs. Dharmpal, AIR 2003 SC 3450 has held that "if despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference" within the meaning of Section 114 of the Evidence Act would be made out. However, what we are concerned with here is, whether the order of the Court directing such DNA testing is an un-
enforceable and un-implementable order, the only consequence of voluntary non-compliance whereof is to enable the Court to draw adverse inference. We find the aspect of enforceability/implementability of the order for medical examination to have not been the subject matter of Sharda or the other judgments (supra), cited by the counsel for the respondent no.1 before us also.
13. The Supreme Court in H.M. Kamaluddin Ansari & Co. v. Union of India MANU/SC/0002/1983 : (1983) 4 SCC 417 has held that orders of the Court are intended to be complied with and the Court would Mittal not Manju pass an 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -6- ineffective injunction order and the Court never passes an order for the fun of passing it and orders are passed only for the purpose of being carried out.
14. In our view, to say, that the exercise earlier undertaken by the Court, was an empty one and in futility - that though the Court could issue a direction for DNA testing but not implement or enforce the same, has the tendency of making the law and the Court, a laughing stock. The perception of "the law" as Mr. Bumble (in Oliver Twist) said "is a ass - a idiot" will be cemented, if the Courts themselves hold their own orders to be un- implementable and un-enforceable. It is the duty of every Court to prevent its machinery from being made a sham, thereby running down the Rule of Law and rendering itself an object of public ridicule. The House of Lords, in Attorney - General v. Guardian Newspapers Ltd. (1987) 1 W.L.R. 1248 observed that public interest requires that we have a legal system and Courts which command public respect and if the Courts were to make orders manifestly incapable of achieving their avowed purpose, law would indeed be an ass. It was further held that the Court should not make orders which would be ineffective to achieve what they set out to do." Then again:
"20. As far as the aspect of there being no statutory provision(s) for implementability/enforceability of such an order is concerned, we had during the hearing also invited the attention of the counsels to Section 51 of the CPC dealing with "Powers of Court to enforce execution". The same, after prescribing the various modes of execution, in Clause (e) provides for execution "in such other manner as the nature of the relief granted may require. The Supreme Court in State of Haryana v. State of Punjab MANU/SC/0524/2004 : (2004) 12 SCC 673 has held that the residuary powers under Section 51(e) allow a Court to pass orders for enforcing a decree in a manner which would give effect to it. It cannot also be lost sight of that at the time the civil procedure was codified in the year 1908, the tests such as of DNA were not even comprehensible much less available. However now that such tests, which are an aid in adjudication are available, the Courts cannot allow such advancements to bypass the Courts. The Supreme Court in State of Maharashtra v. Dr. Praful B.Desai MANU/SC/0268/2003 :
(2003) 4 SCC 601 on the principle of interpretation of an ongoing statute (in that case Cr.P.C.) relied on the commentary titled "Statutory Interpretation", 2nd Edition of Francis Bennion laying down:
It is presumed tthe Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings Mittal Manju to 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -7- allow for changes since the Act was initially farmed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language o the Act though necessarily embedded in its own tim, is nevertheless to be construed in accordance with the need to treat it as a current law. In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters... That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording. An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials."
In appeal, the Supreme Court upheld the above judgment with further directions.
The learned trial court in the impugned order has allowed the application filed by the defendant and rightly so relying on a precedent of the Andhra Pradesh High Court in re: Marada Venkateswara Rao vs. Oleti Varalakshmi and others, 2008(3) Civil Court Cases 416. The Andhra High Court held that if there is controversy as to whether parties to suit were born to common mother whose property they claim to have inherited, then it is essential to order DNA profile test which will set at rest the dispute between the parties. The Court also relied upon Teeku Dutta's case supra.Mittal Manju 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -8-
In the main, this court is of the considered opinion that the learned Additional Civil Judge (Senior Division), Phillaur has rightly paved the way to substantial justice by ordering the test which the petitioner cannot be seen to resist with vigour. Consent in my view would take a back seat when justice sits at the steering wheel. Some lawful actions can well be non-
consensual. Criminal investigation and search and seizure, for instance. The present case seems to me a deserving case in which such an order could have well been passed. I would, therefore, not lightly interfere with the same. The trial court is a court of fact and nothing should be seen to prevent it, in its discretion judiciously exercised, from doing justice. I find no palpable error of jurisdiction in the impugned order sufficient to interfere in exercise of power of superintendence over subordinate courts this court exercises, to keep them within the confines of their jurisdiction. There has been no overstepping here. No substantial injustice would result if the order is implemented and blood sample drawn. No prejudice will be caused to the plaintiff if he is subjected to the test which is now scientifically recognized as the most accurate method known today to confirm or dispel doubts about a biological relationship between two or more persons along their direct maternal line. The resistance of the plaintiff to the test itself leads to doubt, significant enough to take the doubt to its logical end. He has stakes in property, so does she in defence. It was not for nothing that T. S. Eliot concluded his poem 'The Wasteland' invoking the benediction; "Datta, Dayadhvam. Damyata. Shantih shantih shantih" quoting from the Brihadaranyaka Upinashad and Sanskrit for: Give, cooperate, accept others- Peace, peace, peace. The test results give the rather rare but precious Mittal Manju 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh CR No.602 of 2014 -9- thing called, peace of mind.
Consequently, the revision petition fails and is dismissed.
(RAJIV NARAIN RAINA) 28.01.2014 JUDGE manju Mittal Manju 2014.02.13 10:41 I attest to the accuracy and integrity of this document Chandigarh