Delhi High Court
Mrs. Teeku Dutta vs State And Anr. on 16 January, 2004
Equivalent citations: AIR2004DELHI205, 2004(73)DRJ9, AIR 2004 DELHI 205, (2004) 1 PUN LR 35, (2004) 15 INDLD 374, (2004) 109 DLT 641, (2004) 1 CURCC 498, (2004) 73 DRJ 9
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT R.C. Jain, J.
1. This civil revision is directed against the order of learned Administrative Civil Judge, Delhi, dated 20.12.1999 thereby allowing an application under Section 151 CPC filed by the objector Banarsi Dass seeking the DNA test of the petitioner Smt. Teeku Dutta and the other objector Ram Saran Dass in order to link her paternity with him (Ram Saran Dass) and to rule out her claim that she is the daughter of Iqbal Nath Sharma.
2. The facts leading to the present proceedings are that the petitioner Mrs. Teeku Dutta has filed a petition for grant of Succession Certificate in respect of the debts and securities of deceased Iqbal Nath Sharma claiming herself to be his daughter and only surviving class I legal heir. The deceased had died intestate leaving behind his five brothers namely Sh. Banarsi Dass, Sh. Amar Nath Sharma, Sh. Ram Saran Dass Sharma, Sh. P. L. Sharma and Sh. K. C. Sharma. Out of them Sh. P. L. Sharma and Sh. K. C. Sharma had already expired and so only Amar Nath Sharma and Ram Saran Dass Sharma were imp leaded as the respondents in the petition. However, during the pendency of the petition Banarsi Dass another brother of the deceased was also imp leaded who filed his objections to the grant of Succession Certificate in favor of Smt. Teeku Dutta disputing that she was the daughter of deceased Iqbal Nath Sharma. It appears that the petition for grant of Succession Certificate is at a advance stage and the parties have led their respective evidence including the documentary evidence in support of their respective pleas. An application under Section 151 CPC was moved by the objector Banarsi Dass alleging that the petitioner Ms. Teeku Dutta is not the daughter of Iqbal Nath Sharma but in fact she is the daughter of Ram Saran Dass Sharma and since Iqbal Nath Sharma and his wife both are now dead so it is not possible to subject them to a DNA test and compare the same with the DNA Test of the petitioner. However, since Ram Saran Dass Sharma is alive, therefore, a DNA test of Ram Saran Dass Sharma and the petitioner could conclusively establish the paternity of the petitioner to Ram Saran Dass Sharma. The application was opposed on behalf of the present petitioner on the grounds that the application was mala fide and having being made with a view to delay the proceedings. It was also stated that DNA test would not serve any purpose. Besides it was contended that sufficient documentary evidence has already been brought on record to establish that the petitioner was the daughter of the deceased Iqbal Nath Sharma.
3. The learned trial court has allowed the application primarily on the ground that the petitioner had initially concealed the fact that the deceased had five brothers and had deliberately left out Banarsi Dass Sharma from the array of respondents which cast a doubt on the case of the petitioner about she being the daughter of the deceased Iqbal Nath Sharma. It appears that the learned Trial Court considered the petition for grant of Succession Certificate and the "No Objections" filed by the other respondents namely Ram Saran Dass and Amar Nath Sharma to be somewhat collusive. Yet another reason which has weighed heavily with the learned trial court in allowing the application and directing the DNA test is that the documentary evidence brought on record on behalf of the petitioner was not cogent enough to establish that she was the daughter of the deceased Iqbal Nath Sharma. Yet another reason which prompted the learned trial court to grant the prayer of the objector Banarsi Dass was that he was prepared to bear the expenses of the proposed DNA test and that such a test could decide the controversy beyond all doubts.
4. I have heard Shri Y. P. Ahuja, learned counsel representing the petitioner and Shri R. P. Sharma learned counsel representing the respondent and have given my thoughtful consideration to their respective submissions.
5. Mr. Y. P. Ahuja, learned counsel for the petitioner has strenuously urged that the learned trial court has exceeded its jurisdiction in granting the prayer of the objector Banarsi Dass and directing DNA test on the petitioner and Ram Saran Dass Sharma and in any case the order is patently illegal and against the settled legal position. On the other hand Mr. R. P. Sharma, learned counsel representing the respondent has justified the order and has urged that the petitioner should not feel shy in subjecting herself to the proposed test. The issue about subjecting a party to a blood or other scientific test is no longer res integra. The question came up for consideration before the Supreme Court in the case of Goutam Kundu Vs. State of West Bengal & Anr. 1993 SCC (Crl.) 928. In that case the petitioner had disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. The application of the petitioner was dismissed by the Subordinate Court and the High Court on the grounds that there were other methods in the Evidence Act to disprove the paternity and that medical test cannot conclusively establish the paternity. Taking note of the provisions of the Indian Evidence Act and comparing the position as was existing in European jurisdiction. His Lordships ruled that depending on the type of litigation, samples of blood when subjected to skilled scientific examination can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party ascertaining the claim to have a child of the rival set of parents put to blood test must establish his right to do so. The court held that the court exercises protective jurisdiction on behalf of an infant and it would be unjust and unfair to direct a test for a collateral reason to assist a litigant in his or her claim. The court also ruled that it is a rebutable presumption of law that a child born during the wedlock is legitimated and the access occurred between the parents. This presumption can only be dislodged by a strong preponderance of evidence, and not by mere balances of probabilities.
The following legal position emerges from the said judgment:
(1) Courts in India cannot order blood test as a matter of course.
(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) 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.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
6. Additionally, it may be recalled that an inbuilt constitutional safeguard exists in the shape of Article 20(3) of the Constitution against a person accused of any offense being compelled to be a witness against himself. Right of privacy as enshrined in Article 21 of the Constitution also comes into play as and when any party to the proceedings is called upon to undergo any scientific test for the purpose of collecting evidence. It is a fairly settled position that no party to a legal proceedings can be subjected to any scientific test against his or her will as it has the effect of infringing upon his or her right to privacy.
7. Now on the facts and circumstances of the case in hand, can the impugned order be justified or legally sustained? In the opinion of this Court the answer is a plain "No" and it is for more than one reasons. Firstly the learned trial court has fallen in gross error in raising a presumption against the petitioner about her alleged conduct in not impleading Banarsi Dass as respondent in her petition because that fact even if it is true has no relevance to the grant or refusal of the application. Secondly the factum that parties have not been able to produce cogent evidence on record to establish their case was not itself a ground to resort to such a drastic step of ordering the petitioner and the objector Ram Saran Dass Sharma to undergo DNA test and that too, merely on the allegations of the objector Banarsi Dass that she was the daughter of Ram Saran Dass. By doing so the Court has almost pre-judged the whole issue which is not legally permissible. The petitioner much less Ram Saran Dass could be asked to undergo DNA test against their will/consent merely on the asking of the objector in order to establish that she was his daughter and not the daughter of Iqbal Nath Sharma. It would have perhaps been a different thing if the petitioner had herself prayed to the court for her DNA test in order to establish her paternity and the question could then be answered in accordance with the legal proposition as settled by the Supreme Court. The learned trial court in the case in hand was sitting as a Testamentary Court and should have left the parties to prove their respective pleas by such evidence as they could produce on record rather then being instrumental in creating evidence through DNA test etc.
8. Thus having considered the matter from different angles, this Court is of the considered opinion that the impugned order allowing the application of the objector Banarsi Dass is clearly in excess of exercise of the jurisdiction vested in the trial court and therefore, cannot be legally sustained. The revision petition is accordingly allowed and the impugned order is hereby set aside and the application of the respondent-objector Banarsi Dass will be deemed to have been declined.