Guidelines for medical examination before civil and matrimonial court in paternity suit

In this background, it would be appropriate to collate the principles

laid down by the Supreme Court as well as the High Courts in the several

judicial pronouncements noticed hereinabove which are to the following

effect:-

(i) A matrimonial court and the civil court have the implicit and

inherent power to order a person to submit himself for medical

examination (Re: Sharda)

(ii) The court under section 75(e) of the CPC and order XXVI, rule 10A

has the requisite power to issue a direction to hold a scientific, technical

or expert investigation. (Re : Sharda; Selvi)

(iii) Passing of an order for medical examination would not be in

violation of the right to personal liberty under Article 21 of the Indian

Constitution (Re : Goutam Kundu)

(iv) The direction for the medical examination can be issued suo motto

by the court or upon an application filed by a party (Re : Sharda) The

principles of natural justice would require to be complied with.

IA No.10394/2011 in CS(OS) 700/2008 104 (v) The court would examine that the proportionality of the legitimate

aims being pursued are not arbitrary, discriminatory or pointless or which

may adversely impact the best interest of the child (for instance,

bastradise a child) and that they justify the restrictions on privacy and

personal autonomy concerns of the person directed to be subjected to

medical examination

(vi) The court should not exercise such power as matter of course or in

order to have a roving inquiry (Re : Goutam Kundu) Such power would

be exercised if the applicant has a strong prima facie case and there is

sufficient material before the court (Re: Sharda) The court would

consider the age; physical and mental health of the persons involved.

(vii) No one can be compelled to give a sample of blood for analysis (Re:

Goutam Kundu). If despite the order of the court, the respondent

refuses to submit himself to medical examination, the court will be

entitled take the refusal on record and to draw an adverse inference

against him (Re: Sharda)

(viii) A direction to a person to undergo a medical examination could be

made to enable the court to leading the truth; in matrimonial cases also

for removal of misunderstanding, bringing a party to terms; for judging

competency of a person to be a witness; whether a person/party needs

treatment or protection; the capacity of a person/party to protect his

interest or defence in litigation; whether the person needs legal aid (Re;

IA No.10394/2011 in CS(OS) 700/2008 105 Sharda)

(ix) In a case involving a paternity claim/denial issue, 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‟ (Re: Goutam Kundu ; Rohit

Shekhar (Bhat, J - DOJ 23rd December, 2010)

(x) A "paternity" action by the son or daughter of one, claiming the

defendant to be his or her biological father, filed in a civil court by an

adult plaintiff, 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 the threshold application of

Section 112; the Court has to weigh all pros and cons, and, on being

satisfied about existence of "eminent need" make appropriate orders;

(Re: Goutam Kundu; Bhabhani Jena; rohit Shekhar (Bhat, J- DOJ

23rd December, 2010)

(xi) In a case involving a parentage issue, the child‟s best interest shall

dominate the consideration by the court. The court may refrain from

ordering a test if it considers that this may not be in the child‟s best

IA No.10394/2011 in CS(OS) 700/2008 106 interest." The court would also consider the reasons for refusal of the

examination of the child by the party having custody and make

appropriate orders based on the best interest principle.

(xii) which could include an external and internal examination; a physical

and psychological examination of the person. The medical examination

may be directed to include and examination of blood, semen, sputum,

sweat, hair samples, and finger nails by the use of modern scientific

techniques in binding DNA profiling.

(xiii) The medical examination/expert investigation must be by a qualified

doctor; qualified psychiatrist/expert in the field (Re: Sharda)

(xiv) The medical examination including the DNA profiling would be

ordered by the court if relevant to the specific issue; necessary and

relevant to ensure legitimacy of administration of justice ; where scientific

tests are necessary for discovery, doing justice to all parties; and, where

the relevant evidence cannot be obtained by any other non-intrusive

methods.

(xv) The court has the jurisdiction to order DNA testing of blood

relatives of a person alleged to be the parent, even though they are not

parties to the litigation.

(xvi) The results of the scientific DNA testing shall be produced before

the court in sealed cover and kept in a sealed cover.

(xvii) The court would make appropriate direct preservation of the

IA No.10394/2011 in CS(OS) 700/2008 107 samples and also the confidentiality to be attached to the same.

(xviii) The testing must be undertaken by an accredited laboratory with

established and accepted credentials and expertise which meets the

publicly sanctioned standards.

(xix) Appropriate directions covering the technical aspects with regard to

drawing, preservation, transportation, and integrity of the sample

specimen must be made so that integrity and identity of the

sample/specimen is guaranteed.

(xx) The court could direct that the report of the DNA test should contain

the following :-

(i) qualifications of the person making the report

(ii) details of identity of the person tested

(iii) circumstances in which and description of sample was taken from

each person to whom the report relates and the manner in which the

person was separately identified from each person to whom the test

relates

(iv) the nature/system in which the test undertaken

(v) the results of the test

(vi) whether the results show that a person is not a natural parent of

the child

(vii) whether the blood test carried out on a person does not show that

the person is not a natural parent of the child, the report may contain an

IA No.10394/2011 in CS(OS) 700/2008 108 evaluation of the significance of the results of the test in determining

whether that person is a natural parent of the child.

These guidelines would guide consideration of application for

medical examination before a civil court and matrimonial court.

Delhi High Court

Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr. on 23 September, 2011

Author: Gita Mittal

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 DNA IA No.10394/2011 in CS(OS) 700/2008 1 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 1.6.2011 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
IA No.10394/2011 in CS(OS) 700/2008 2 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 IA No.10394/2011 in CS(OS) 700/2008 3 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
IA No.10394/2011 in CS(OS) 700/2008 4 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 vs. 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 vs. State of West Bengal and AIR 2003 SC
3450 Sharda vs. 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
IA No.10394/2011 in CS(OS) 700/2008 5 in (2010) 7 SCC 263 Selvi vs. 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
IA No.10394/2011 in CS(OS) 700/2008 6 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 vs. State of West Bengal; AIR 2003 SC 3450 Sharda vs. Dharmpal; (2001) 5 SCC 311 Kanti Devi & Anr. Vs. 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 prece4dents have IA No.10394/2011 in CS(OS) 700/2008 7 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 vs. 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 (CPC) read with Order-XXVI, Rule-10 (A) to issue a direction for holding a scientific technical or expert investigation. It is argued that the Supreme Court had in Goutam Kundu v. State of West Bengal & Anr., (1993) 3 SCC 418 even while sounding a note of caution with regard to a court's approach in deciding such applications, had summarized the legal position in the following manner: -
"26. From the above discussion it emerges:- (1) that courts in India cannot order blood test as 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."
xxx
35. The Court would now examine if a third party (to a marriage, like the first defendant here) may be compelled to undergo scientific tests of the nature of giving blood samples for the purpose of DNA testing. The case of Goutam Kundu (supra) provides us with assistance here. In this case, the Court held that "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 IA No.10394/2011 in CS(OS) 700/2008 8 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."
In the order dated 23rd December, 2010, the court has thus
extensively relied on the principles laid down in Goutam Kundu (supra)
by the Supreme Court.
17. The judgment dated 23rd December, 2010 has also considered the
law laid down in Sharda (supra) in the following terms :-
"7. The Plaintiff argues that the correct legal position was, however, restated and clarified by a subsequent larger - 3 Judges Bench ruling reported as Sharda v. Dharmpal AIR 2003 SC 3450. In the said judgment, the Court held as follows:
―39. Goutam Kundu (supra) 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 directions should ordinarily be made if it is in the interest of the child.
xxx xxx xxxx
80. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia...etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the Petitioner would always insist on medical examination. If respondent avoids such medical examination on the IA No.10394/2011 in CS(OS) 700/2008 9 ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so called right to privacy of the Respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved. xxx
14. The decision in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and
Anr. AIR 2010 SC 2851 was cited to say that the Court should never as a rule grant applications directing one party or the other to undergo DNA test. In that case, the Supreme Court considered the previous ruling in Sharda's case in the context of a submission that it conflicted with the reasoning in Goutam Kundu's case and held as follows:
―13. In a matter where paternity of a child is in issue before the court, the use of DNA is an
extremely delicate and sensitive aspect. One view is that when modern science gives means of
ascertaining the paternity of a child, there should not be any hesitation to use those means
whenever the occasion requires. The other view is that the court must be reluctant in use of such
scientific advances and tools which result in
invasion of right to privacy of an individual and may not only be prejudicial to the rights of the
parties but may have devastating effect on the
child. Sometimes the result of such scientific test may bastardise an innocent child even though his
mother and her spouse were living together
during the time of conception. In our view, when
there is apparent conflict between the right to
privacy of a person not to submit himself forcibly to medical examination and duty of the court to
reach the truth, the court must exercise its
IA No.10394/2011 in CS(OS) 700/2008 10 discretion only after balancing the interests of the parties and on due consideration whether for a
just decision in the matter, DNA is eminently
needed. DNA in a matter relating to paternity of a child should not be directed by the court as a
matter of course or in a routine manner,
whenever such a request is made. The court has
to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and
cons of such order and the test of `eminent need' whether it is not possible for the court to reach the truth without use of such test.
14. There is no conflict in the two decisions of this Court, namely, Goutam Kundu (AIR 1993 SC
2295: 1993 AIR SCW 2325) and Sharda (AIR
2003 SC 3450: 2003 AIR SCW 1950). In Goutam
Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving
inquiry; there must be strong prima facie case
and court must carefully examine as to what
would be the consequence of ordering the blood
test. In the case of Sharda while concluding that a matrimonial court has power to order a person to
undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is
sufficient material before the court. Obviously,
therefore, any order for DNA can be given by the
court only if a strong prima facie case is made out for such a course. Insofar as the present case is concerned, we have already held that the State
Commission has no authority, competence or
power to order DNA.‖
18. So far as 2001 (5) SCC 311 Kanti Devi vs. Poshi Ram is
concerned, the Apex Court had considered the scope of section 112 of the
Evidence Act and in para 9 observed that it provided an outlet to the
party wanting to escape from the rigours of its conclusiveness. It was
held that if the party could show that the parties had no access to each IA No.10394/2011 in CS(OS) 700/2008 11 other at the time when the child could have been begotten, the
presumption could be rebutted. This pronouncement is part of the
consideration in AIR 2009 SC 3115 Shyamd Lal vs. Sanjeev Kumar
noticed in para 13 of the judgment dated 23rd December, 2010.
The submission of Mr. B.U. Burqi, learned counsel for the defendant
no. 1 that the principles laid down in the pronouncement Goutam
Kundu; Sharda vs. Dharmpal; Kanti Devi & Anr. Vs. Poshi Ram have
been overlooked is thus completely without merit.
Reliance on (2010) 7 SCC 263 Selvi vs. State of Karnataka
19. Mr. B. U. Burqi, learned counsel in support of the application has
placed reliance on (2010) 7 SCC 263 Selvi vs. State of Karnataka.
This judgment does not appear to have been placed before this court
while dealing with IA No. 4720/2008 even by the defendant no.1. Mr.
Burqi has placed reliance on the following observations of the Supreme
Court in para 264 of the judgment:-
"264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be IA No.10394/2011 in CS(OS) 700/2008 12 admitted in accordance with Section 27 of the Evidence Act, 1872.‖
(Emphasis supplied)
20. So far as a judicial pronouncement is concerned, it is well settled
that principle of law laid down by the Supreme Court has to be read in the
context of the issues which were before the court. (Ref: JT 2002 (1) SC
482 Haryana Financial Corporation vs. Jagdamba Oil Mills & Anr.;
(2006) 1 SCC 275 State of Orissa & Ors. vs. Md. Illiyas; (1996) 6
SCC 44 Union of India vs. Dhanwanti Devi).
21. The questions which were raised before the Supreme Court in Selvi
(supra) are to be found in para 2 and 11 of the judgment and read as
follows.
"2. The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. .....However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.
5. The involuntary administration of the impugned techniques prompts questions about the protective scope of the `right against self-incrimination' which finds place in Article 20(3) of our Constitution.‖
The questions answered by the court in Selvi set out in para 11 of
the pronouncement categorically refer to only the aid "impugned
techniques".
IA No.10394/2011 in CS(OS) 700/2008 13 It is therefore apparent that the observations in para 264 relate to
the tests which have been set out in para 2 of the judgment reproduced
heretofore. Blood testing or DNA profiling were not an issue which was
answered in para 264 of the judgment rendered by the Supreme Court in
Selvi vs. State of Karnataka (supra). The same has thus no bearing on
the instant case.
Whether the court order directing a blood sample for DNA profiling can be physically enforced?
22. It is important to note that the entire basis of the submission‟s of
the defendant no.1 is that the court direction on 23rd December, 2010 to
the defendant no.1 results in violation of his absolute rights under Article
21 of the Constitution.
23. As to what would constitute compulsion, the observations of the
Supreme Court in para 17 of the judgment reported at AIR 1961 SC
1808 : 1962 (3) SCR 10 State of Bombay vs. Kathi Kalu Oghad
while considering the legality and permissibility of taking of material
samples as fingerprints for purposes of comparison and identification on
the ground that the same violated the rights under Article 20(3) of the
Constitution of India of the person concerned are relevant and read as
follows:-
"17. The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. Hence, the IA No.10394/2011 in CS(OS) 700/2008 14 mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it. (Emphasis supplied)
24. Given the legal principles laid down by the Supreme Court in
Goutam Kundu, Sharda & Selvi (supra) as well as the as detailed
discussion on the issue by my learned brother Bhat, J; the judgment of
the Division Bench dated 7th February, 2011, there can be no dispute at
all, that upon being satisfied with the relevance of the evidence and
reliability of the scientific technique in question, the civil court can issue
an order to a person directing him to give a bodily sample for DNA
profiling. It is well settled that compulsion of law is not even coercion.
(Ref : AIR 2004 SC 4716 S.S. Sakhar Kharkhana Ltd. Vs. CIT
Kolhapur; AIR 1968 SC 599 Andhra Sugar vs. State of Andhra
Pradesh)
Such a direction by the court on 23rd December, 2010 on well
settled binding legal principles cannot constitute "compulsion" as to
violate the constitutional rights of the person concerned (the defendant
IA No.10394/2011 in CS(OS) 700/2008 15 no.1 in this case) and is constitutionally and legally permissible.
25. Before this court, learned counsels for the parties however
completely missed the important discussion on the permissibility and
relevance of the DNA profiling by the Supreme Court in Selvi's case
(supra).
26. In this context, even though the issue of intimate testing as blood
testing for the purposes of DNA profiling was not specifically before the
court in Selvi, however observations on the same have been extensively
made in paras 220 and 224, which have a material bearing on the
question and read as follows:-
"220. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53A and 54 of the CrPC. It must also be clarified that a `DNA profile' is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.
xxx
224. Moreover, a distinction must be made between the character of restraints placed on the right to privacy. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a IA No.10394/2011 in CS(OS) 700/2008 16 person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy' we must highlight the distinction between privacy in a physical sense and the privacy of one's mental processes.
(Emphasis supplied)
The findings of the Supreme Court in para 264 of Selvi (supra)
reproduced above are with regard to violation of the privilege against self
in crimination and the right to privacy of a person by subjecting him/her
to forcible extraction of testimonial responses which results on the
involuntary administration of the narcoanalysis, polygraph examination
and the Brain Electrical Activation Profile Test, as distinct from the
statutorily permissible "restraints of a physical nature such as the
extraction of bodily substances and use of reasonable force for subjecting
a person to a medical examination" in exercise of police powers under
sections 53, 54 of the CrPC.
27. The brief examination of the jurisprudence where compulsory
testing or the permissibility of involuntary drawing of samples has been
accepted or statutorily permitted which was possible shows that judicial
precedents on this area largely arise in cases relating to criminal
prosecutions in serious offences including those involving narcotic
substances; murder; manslaughter by drunken driving and sexual
offences. In each case, the court weighed the interest of justice in the
context of public policy while examining the permissibility of compulsory
testing.
IA No.10394/2011 in CS(OS) 700/2008 17
28. The plaintiff makes a grievance that in the instant case, the
determination is necessary as his biological parents were living separately
and he has complained of rejection, abuse and neglect by his alleged
father-the defendant no.1.
29. The statutory regime so far as medical examinations are
concerned, shows that sections 53 and 54 of the Code of Criminal
Procedure were amended with effect from 31st December, 2009 to
authorize a "registered medical practitioner, acting, at the request of a
police officer not below the rank of sub-inspector, and for- any person
acting in good faith in his aid and -under his direction, to make such all
examination of the person arrested as is reasonably necessary in order to
ascertain the facts which may afford such evidence, and to use such force
as is reasonably necessary for that purpose". The explanation to section
531 clarifies that „examination‟ of the arrestee includes examination of
blood and blood stains.
30. On the issue of use of compulsion for drawing blood and urine
samples and tissue for DNA testing, the Supreme Court in Selvi has also
referred to the jurisprudence from the ECHR2; made reference to 37th
1
Explanation to section 53 Cr.P.C. states broadly that "examination" shall include "examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling."
2
In Saunders v. United Kingdom (1997) 23 ECHR 313, the European Court of Human Rights observed that right not to incriminate oneself is concerned with the will of an accused to remain silent. Use of compulsory powers in criminal procedure to obtain materials including blood samples for DNA testing from the accused, IA No.10394/2011 in CS(OS) 700/2008 18 and 41st Reports of the Law Commission of India and an article by
Emerson G. Spies printed in 38 Australian Law Journal 223, 231 (1964)
on this issue.
The discussion in Selvi clearly suggests that in criminal
proceedings, use of material obtained from the accused through use of
compulsory powers but which has an existence independent of the person
including blood samples can be used for DNA testing which would not
violate the privilege against self incrimination and is legally permissible.
In para 169 of the pronouncement in Selvi (supra), the court held
that the amendment to CrPC provisions was informed by a rational
distinction between examination of physical subsistence and testimonial
acts and the statutory provision enables use of "reasonable force" for the
purpose.
31. Reference can be usefully made to also the statutory position and
the jurisprudence from other jurisdictions where statutory provisions are
in place and law on this issue has extensively developed.
32. The taking of blood sample for the purposes of criminal
investigation has long been a sanctioned procedure in other jurisdictions.
The taking of bodily samples have been opposed in criminal jurisdictions
primarily on account of two main reasons, the first being the protection
against unreasonable searches and seizures enshrined in Charters of
which has an existence independent of the will of the suspect ,is not included in the right against self- incrimination (which is concerned with respecting the will of the accused person to remain silent).
IA No.10394/2011 in CS(OS) 700/2008 19 Citizens Rights in several jurisdictions. The second ground of opposition
is premised on the common law principle of privilege against self-
incrimination. (Ref : Schmerber v. California 384 US 757 (1966)3 ;
State vs. Chase, 2001 ME 68, 785 A.2d 702 (Me. 2001)4 ; R v.
Stillman (1997) 1 S.C.R. 6075 ; R. v. S.A.B. (2003) 2 S.C.R. 678,
2003 SCC 60 ; (1987) 33 C.C.C. (3d) 1 R.V. Collins)
33. In R. v. S.A.B. (2003) 2 S.C.R. 678; 2003 SCC 606, the
challenge to the constitutionality of the DNA warrant provisions SS.487.04
to 487.09 of Criminal Code, R.S.C. 1985, C-46 was rejected by the
Supreme Court of Canada. The court was also called upon to consider the
issue of weight to be attached to the evidence of the DNA expert.
34. In R. V. Collins (1987) 33 C.C.C. (3d) 17 the Supreme Court of
Candada was concerned on the reasonableness of a seizure in regard to
the breathalyser testing in relation to section 8. It has been observed
3
In Schmerber v. California, taking of blood sample without the consent of the accused was upheld.
4
Admittedly blood test requires a warrant but Fourth Amendment would not be violated in otherwise cases if police has a probable cause. [State v. Chase]
5
In R. v. Stillman the majority of the Supreme Court of Canada held that though unauthorised use of a person's body or bodily substances is a "compelled testimony" but if it is demonstrated on a balance of probabilities that the evidence would have been discovered by alternative non-constrictive means its admission will generally not render the trial unfair. Major, J., (consenting) further observed that no consent is anyway required where the evidence is abandoned even when the accused is in custody. McLachlin, J., (dissenting) however held that since no emergency was alleged in this case and the searches were not necessary to protect the immediate safety of the police or public, taking of the bodily samples is outside the scope of lawful search incidental to arrest. However, taking of the tissue abandoned by the accused in the accused had lost privacy interest, was not a search and no consent was required. The right not to incriminate himself was not violated since the privilege did not apply to "real evidence". 6
In R. v. S.A.B., the Supreme Court of Canada upheld the constitutionality of DNA warrant legislature and discussed the issue of weight to be attached to the evidence of DNA expert.
7
In R. v. Collins, the Supreme Court of Canada observed that while dealing with the reasonableness of a seizure in regard to the breathlyser testing the first requirement would be a legal authorization and then to consider whether the drug testing measure itself was reasonable.
IA No.10394/2011 in CS(OS) 700/2008 20 that the first requirement for reasonableness would be some form of legal
authorisation and then it would be necessary to consider whether the
drug testing measure itself was reasonable.
35. In South Africa, applications for compelling accused persons to give
blood samples for the purposes of DNA profiling in criminal jurisdiction
have been opposed on the ground that it will infringe their fundamental
constitutional rights to dignity, to freedom and security of the person; the
right to bodily integrity; the right to privacy; and the right to be
presumed innocent and not to have to assist the prosecution in proving
this case.
36. This issue arose in an appeal before the High Court of South Africa
(Cape of Good Hope Provincial Division) in Case No. SS 32/03 The
State v. Mogamat Phadiel Orrie & Anr. In the judgment pronounced
on 21st November, 2003, an application for taking fresh blood samples
was in issue. The accused had initially submitted to taking of blood
samples without demur. There were some difficulty about the integrity of
the samples taken resulting in the prosecution making the application
which was under consideration. The court placed reliance on
jurisprudence from not only the South African Courts but also of the
Supreme Court of United States of America and of Canada. On the issue
of nature of the test, in para 18, the court observed as follows :-
"18. DNA (the abbreviation for Deoxyribonucleic Acid) is a relatively new type of testing which may be performed on a wide IA No.10394/2011 in CS(OS) 700/2008 21 range of bodily samples, including blood, with a view to proving guilt, establishing innocence or proving relationships. The test, a complex one, is based upon the scientific thesis that all individuals, save for identical twins, possess a unique genetic code held in the 46 chromosomes which are made up of the complex chemical which is DNA.‖
37. Placing reliance on the statutory provisions and the "reasonableness
of the procedure", it was observed that "the inconvenience and
infringement of personal liberties which the accused will suffer
through the taking of fresh blood samples is, in my view, very
limited and is justified and sanctioned by law. Although I can
envisage circumstances in which a court might hold that the taking of a
further set of blood samples from an accused would be unreasonable or
unnecessary, this, however, is not such a case."
38. The above narrations would show that even in criminal
jurisprudence, the courts have ruled that unauthorised use of physical
evidence in certain circumstance would be treated as compelled testimony
which could render the trial unfair.
39. The position qua criminal law, the powers of the investigators and
the criminal court thus is clear. However, a difficulty arises on the issue
in the context of civil jurisdiction (including matrimonial jurisdiction)
where there is no specific legislation. Certainly there are no statutory
guidelines on the manner in which the court direction would be
implemented.
40. Scientific techniques have also seen developments which were IA No.10394/2011 in CS(OS) 700/2008 22 never envisaged fifteen years ago.
41. In Selvi (supra), the Supreme Court considered the admissibility
of scientific evidence at great length and the responsibility on the court.
Reference has been made to the pronouncement of the US Supreme
Court in Daubert vs. Merrel Dow Pharmaceutical 125 L Ed 2d 469 :
509 US 579 (1993). In this case the Supreme Court of the USA dealing
with testimony of experts, observed that the standard of "general
acceptance of the particular field" changed the rules with regard to the
admissibility of scientific evidence for several decades. In para 26 of
Selvi8, the Supreme Court of India has quoted from the majority opinion
in Daubert, the Supreme Court of India has quoted from the majority
opinion in Daubert‟s case 125 L Ed 2d 469 : 509 US 579 (1993) on the
manner in which the trial court should evaluate scientific evidence ; the
relevance as well as reliability of the scientific technique in question.
The inquiry has been recommended to be a flexible one with its
focus solely on principles and methodology, not on the conclusions which
were generated, with the trial judge performing a "gatekeeping" role to
decide on the admission of expert testimony based on scientific
techniques. These observations have relevance in as much as there is no
8
Trial Judge's first step should be a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid; whether it properly applies to the facts in issue; whether the theory/technique stands tested; stands subjected to peer review and publication; its known or potential error rate; existence and maintenance of standards controlling its operation and; whether it has attracted widespread acceptance within the scientific community.
IA No.10394/2011 in CS(OS) 700/2008 23 specific legislation governing DNA profiling or guiding a civil court on its
permissibility, evaluation, application or methodology.
It is this legislative vacuum which has enabled learned senior
counsel for the plaintiff to contend that in exercise of inherent power, this
court must confine the defendant no.1 to furnish a blood sample for DNA
profiling.
42. Despite a court order to do so, the applicant-defendant no.1 a well
known public figure, is refusing to give a blood sample voluntarily for the
purposes of DNA profiling so as to ascertain as to whether he has fathered
the plaintiff from an alleged extra-marital relationship with the defendant
no.2. He further argues that he cannot be compelled to do so.
43. The plaintiff before this court insists that the defendant no.1 must
be physically confined and a sample forcibly drawn.
44. In this regard, it is important to notice the valuable dissents in
judicial pronouncements even in jurisdictions where mandatory or
involuntary testing has been held to be constitutionally, valid and
statutorily permissible. It is not possible to notice all opinions herein but
reference to some of these judicial opinions is necessary.
45. The Supreme Court of United States in the case titled Breithaupt
v. Abram 352 U.S. 432 (1957) had occasion to consider the
constitutionality of a blood sample of the petitioner who was driving a
pickup truck which was involved in a collision with a passenger car and
IA No.10394/2011 in CS(OS) 700/2008 24 was as a result injured. In hospital, the smell of liquor has been detected
on his breath and a blood sample was drawn by the attending physician
while he was lying unconscious in the emergency room. The petitioner
had challenged the legality of his conviction and the constitutionality of
the blood test.
The court distinguished the case from the previous judgment
rendered in Rochin v. California, 342 U.S. 165 (1952) when the state
officers forced open the mouth of the petitioner after a considerable
struggle in an unsuccessful attempt to retrieve what had been placed by
the petitioner in his mouth. Later, a stomach pump was forcibly used to
extract from his stomach what were found to be narcotic pills. The
conviction in Rochin based on this search and seizure was set aside
because such conduct "shocked the conscience" and was so "brutal" and
"offensive", that it did not comport with traditional ideas of fair play and
decency.
The majority opinion in Breithaupt held that there was nothing
"brutal" or "offensive" in the taking of a sample of blood when done as in
this case under the protective eye of a physician ; the absence of
conscious consent without more, does not necessarily render the taking of
the sample as a violation of a constitutional right.
46. In the dissenting opinion, (in Breithaupt v. Abram) Chief Justice
Warren rejected the legality of the involuntary testing. It was observed
IA No.10394/2011 in CS(OS) 700/2008 25 thus:-
"In reaching its conclusion that in this case, unlike Rochin, there is nothing "brutal" or "offensive" the Court has not kept separate the component parts of the problem. Essentially there are two: the character of the invasion of the body and the expression of the victim's will; the latter may be manifested by physical resistance. Of course, one may consent to having his blood extracted or his stomach pumped and thereby waive any due
process objection. In that limited sense the expression of the will is significant. But where there is no affirmative consent, I cannot see that it should make any
difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest. The Court, however, states that "the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right." This implies that a different result might follow if petitioner had been conscious and had voiced his objection. I reject the distinction.
Since there clearly was no consent to the blood test, it is the nature of the invasion of the body that should be determinative of the due process question here
presented. The Court's opinion suggests that an
invasion is "brutal" or "offensive" only if the police use force to overcome a suspect's resistance. By its recital of the facts in Rochin--the references to a "considerable struggle" and the fact that the stomach pump was "forcibly used" - the Court finds Rochin distinguishable from this case. I cannot accept an analysis that would make physical resistance by a prisoner a prerequisite to the existence of his constitutional rights.
Apart from the irrelevant factor of physical resistance, the techniques used in this case and in Rochin are comparable. In each the operation was performed by a doctor in a hospital. In each there was an extraction of body fluids. Neither operation normally causes any lasting ill effects. The Court denominates a blood test as a scientific method for detecting crime and cites the frequency of such tests in our everyday life. The stomach pump too is a common and accepted way of making tests and relieving distress. But it does not follow from the fact that a technique is a product of science or is in common, consensual use for other purposes that it can be used to IA No.10394/2011 in CS(OS) 700/2008 26 extract evidence from a criminal defendant without his consent. Would the taking of spinal fluid from an unconscious person be condoned because such tests are commonly made and might be used as a scientific aid to law enforcement? Only personal reaction to the stomach pump and the blood test can distinguish them. To base the restriction which the Due Process Clause imposes on state criminal procedures upon such reactions is to build on shifting sands. We should, in my opinion, hold that due process means at least that law- enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids, whether they contemplate doing it by force or by stealth.‖
(Emphasis supplied)
47. In the other dissenting opinion (in Breithaupt v. Abram) rendered
by Justice Douglas and Justice Black, it was observed thus :
"The court seems to sanction in the name of law enforcement the assault made by the police on this unconscious man...... xxx
And if the decencies of a civilized state are the test, it is repulsive to me for the police to insert needles into an unconscious person in order to get the evidence necessary to convict him, whether they find the person unconscious, give him a pill which puts him to sleep, or use force to subdue him. The indignity to the individual is the same in one case as in the other, for in each is his body invaded and assaulted by the police who are supposed to be the citizen's protector.‖
48. In the pronouncement dated 28th of November, 2002 in Case No.
403/2000 entitled Hamilton Caesar Levack & Ors. vs. Regional
Magistrate, WYNBERG, the Supreme Court of Appeal of South Africa
was concerned with an order under Section 37 of the Criminal Procedure
Act, 51 of 1997 directing that the arrested persons supply voice samples.
On the issue of the blood sample, in para 20 of the pronouncement, the
IA No.10394/2011 in CS(OS) 700/2008 27 court observed as follows :-
"20. It is of course true that to take a palm-or fingerprint, or to draw blood from an accused, or to require him to supply a voice sample, goes further than merely observing his features or complexion when he appears in court. Our legal system recognizes the distinction. It is for this reason that Ackermann J held in S v. Binta 1993 (2) SACR 553(C) that a person who refuses a request to submit to the taking of a blood sample under S 37 cannot, by the mere refusal, be guilty of obstructing the course of justice or of attempting to defeat the ends of justice. The additional means of compulsion that the provision licenses may have to be employed. In the present case, it was no doubt awareness of Binta that induced the DPP to seek the order. Eventual defiance of it would found a charge of contempt of court.
21. Despite this added feature, there is no difference in principle between the visibly discernible physical traits and features of an accused and those that under law can be extracted from him through syringe and vial or through the compelled provision of a voice sample. In neither case is the accused required to provide evidence of a testimonial or communicative nature, and in neither case is any constitutional right violated.‖
(Emphasis supplied)
49. It is also important to note that in criminal investigations and
prosecutions, the medical examination is undertaken by state entities.
Mandatory medical examinations are also undertaken by non-state
entities including individuals. For instance, it is required by insurance
companies which effectuate their strong interest in obtaining personal
health information for the reason that the insurance company takes a
financial risk by entering into a contractual relationship with the person
concerned. The same concerns may also arise if an employee was
rendered unfit to perform his or her work or lays a claim for alternate
IA No.10394/2011 in CS(OS) 700/2008 28 employment or benefits on account of his incapacity or disability thereby
placing financial burdens on the employers. There may be concerns of
the health of colleagues which may also be a concern for an employer
who enforces mandatory medical examinations prior to employment.
Issues of compulsory testing have also arisen in the context of
prisoner incarceration; mandatory drug testing in employment contracts
or under service rules and conditions; issuance of driving licenses; pre-
school admission testing ; sports; crime detection; in educational
institutions and disease eradication.
A lot of debate on the subject is also available in concerns of public
health findings of epidemics; identification of disease or infections to
control spread of disease may be involved. Medical examinations may be
in the context of epidemiological research.
50. The stringent standards as applied in the context of criminal law
application are not so stringently applied when dealing with the
administrative or regulatory context. The degree of privacy that an
individual can reasonably expect may vary depending on the nature of the
rights and concerns involved.
51. In 1986 1 SCR 103 R. v. Oakes, it was held that constitutional
rights are subject to reasonable limits prescribed by law. Such limits are
required to be justified in a free and democratic society. Objectives of
mandatory testing have to relate to important personal and substantial
IA No.10394/2011 in CS(OS) 700/2008 29 concerns and the means chosen have to be proportional or appropriate to
the ends. Simply put, the mandatory testing would have to be rationally
connected to the objective sought to be achieved and further, impair
constitutional rights as little as possible.
52. In 109 S. Ct. 1384 (1989) National Treasury Employees
Union v. Von Raab, the majority of the US Supreme Court upheld the
constitutionality of the mandatory testing for promotions to specified
positions imposed by the US Customs Service in a drug interdiction
program, except for testing of employees applying for positions involving
handling of classified material. It was noted that in an administrative
context, the requirement of "probable cause" (i.e. circumstances
suggesting that a person to be searched has violated the law) might be
unhelpful and that, given the government‟s compelling need to deter drug
use in the Customs Service, the requirement of "individual suspicion"
could also be dispensed with. It was held that the need to prevent future
occurrences of drug abuse by custom employees was ample justification
for the testing programme. The employee‟s right to privacy thus could be
reduced in the context of the workplace, particularly in the case of front-
line drug prohibition/enforcement government employees given the
Governments‟ compelling need to prevent drug abuse.
53. In the judgment reported at Veronia School District v. Acton
515 U.S. 646 (1995), the Supreme Court of USA upheld the
IA No.10394/2011 in CS(OS) 700/2008 30 reasonableness and the constitutionality of random urinalysis drug testing
of high school athletes. The court observed that there was "decreased
expectation of privacy" among student athletes; the "relative
unobstrusiveness" of the search at issue and the "severity of the drug
problem" in the school district. It was observed that children in school
are in the "temporary custody of the state".
54. In R v. McKinlay Transport (1990) 68 D.L.R. (4th) 568 the
Supreme Court of Canada held that random monitoring may be the only
way to maintain the integrity of the tax system.
55. In R. v. M. (M.R.), (1998) 3 S.C.R. 393, it was held that the
reasonable expectation of protection is lower for students attending
school than for others, because students know that teachers and school
authorities are responsible for maintaining order and discipline and
thereby ensuring a safe school environment. It was concluded that this
reduced expectation of privacy, coupled with the need to protect students
and provide a positive atmosphere for learning, clearly suggested that
there should be a more lenient and flexible approach to searches
conducted by teachers and principles than to searches conducted by the
police.
56. On paternity, the courts in South Africa have ruled that blood tests
are a reliable test to discerning the truth and the court has the power to
compel an adult to submit to blood test where it is in the best interests
IA No.10394/2011 in CS(OS) 700/2008 31 that clarity is obtained on the issue. (Ref: M v. R 1989 (1) SA 416 (O)
420; O v O 1992 (4) SA 137 © 139 H-1; 139 H-140 A; YD v. LB
2009 (5) SA 479).
57. In 2009 5 SA 463 (T) LB v. YD, Murphy J rejected Mulyn J‟s
discussion in S v. L (1992 3 SA 713 (E) and expressed the view that the
legitimacy of the administration of justice would be harmed if reliable
scientific evidence were to be excluded simply because it involved a
relatively minor infringement of privacy and upheld the court‟s right to
order a person within their jurisdiction to furnish a few drops of blood to
materially assist in the administration of justice. It was held that the
court had the inherent power and authority as guardian to order scientific
test for discovery and doing justice to all parties in the suit, on the basis
of that it will generally be in the best interest of the child to have any
doubts about the paternity resolved by the best available evidence. It
was also held that the rights of privacy and bodily integrity may also be
infringed when it is reasonably justifiable to do so. It may be noted that
the judgment was rendered before DNA profiling was recognized as a
scientific method of testing and identification of the natural father with
any degree of probability.
58. In the said judgment, Murphy J was of the view that given the
refusal of the mother to submit herself or the child to the scientific test,
reliance on the presumption would have had the effect of recognizing the
IA No.10394/2011 in CS(OS) 700/2008 32 respondent‟s husband as the father of the child and thereby burdening
the person who was not regarded as father by either party to the
proceedings as the father of the child. Murphy J had stated the position
thus :-
"Given the extended rights and obligations of unmarried fathers, it seems only right that the truth be established, as it can be, in the interests of justice, before burdening a party with responsibilities that might not be his to bear.‖
In this background, primacy was given to the value associated with
administration of justice and it was held that the court would order blood
test on the minor child despite the objection of the parent, both as
guardian of the child and "in the interest of effectiveness of its
procedures". It was also directed that in the circumstances and even
reasonable limits, the non-consenting adult too could be compelled to
submit to blood test in order to discover the truth and serve the best
interest of the administration of justice. As leave to appeal was not
granted in this case, there remains legal uncertainty on this area of law
in the South African jurisdiction.
59. In South Africa, section 37 of the Children Act (Act 38 of 2005)
creates a presumption of paternity in instances where, inter alia, the
person had intercourse with the mother at any time when the child might
have been conceived. Section 37 further states that an adverse inference
may be drawn if, in instances where paternity is in issue, one party
refuses to submit him or herself and or the child to blood tests in order to IA No.10394/2011 in CS(OS) 700/2008 33 scientifically prove paternity.
60. In the current law regime in New Zealand, one way of establishing
paternity is by applying to the family court under Section 4 of the Family
Proceedings Act, 1980. Akin to section 112 of the Evidence Act, 1872 in
India, a person married to the mother is assumed to be the father
(Section 47(2). There are certain limitations under this legislation. Only
a mother can apply to a court for a paternity order. The court can merely
recommend a DNA test for establishing paternity (Section 54 (1)(a). The
court cannot order a DNA test. Under Section 52(2), if the respondent
refuses a DNA test, the court will rule without this evidence and the court
can "draw such inference (if any) from the fact of refusal as appear to it
to be proper in the circumstances".
61. Another remedy for establishing paternity is also available by
applying to the family court or the high court for a declaration of paternity
under section 10 of the Status of Children Act, 1969 whereunder a similar
power exists.
62. A recent court of appeal decision confirmed that the court can order
DNA testing on the application of a person claiming to be a natural parent
when the sole guardian of the child (the other parent) refuses to consent
to their child having a DNA test (Ref: T v. S and Anor (17/12/2004)
Court of Appeal CA 249/2002 Anderson P, Hammond, J and William,
J. In this case, the court assigned guardianship of the child to the court
IA No.10394/2011 in CS(OS) 700/2008 34 for a few hours under section 10B of the Guardian Act, 1968 while DNA
samples were taken so that the child‟s guardian could give consent to the
taking of the DNA then transferred back to the custodial parents.
Reliance was placed on the United Nations‟ Convention on the Rights of
the Child as well as the best interest of the child principle to have the
child‟s DNA tested.
63. It is important to note that in the face of refusal by a person having
care and control of a child to give consent to the child giving a bodily
sample, in [1998] 2 WLR 796 Re R (A Minor) (Blood Tests;
Constraint), Hale J had decided that there was nothing in principle
against obliging a child to provide a blood sample and ordered delivery of
the child to the care and control of the official solicitor at a particular time
and place for that purpose, making it plain that the official solicitor is
permitted to consent to the child.
64. A contrary view was taken in [2002] 2 WLR 1284 Re O (A
Minor) (Blood Tests: Constraint).
65. Section 21(3) of the Family Law Reform Act was thereafter
amended in the U.K. so that it permits the taking of a bodily sample from
a child either with the consent of the person who has "care and control" of
the child, or, if the court considers that it would be in the best interest of
the child for the same to be taken.
66. It is important to note that in these cases it was the guardianship of
IA No.10394/2011 in CS(OS) 700/2008 35 the child incapable of giving consent which was under consideration and
transfer of temporary custody for sampling. No issue regarding
confinement of an adult (capable of giving his consent) was involved.
67. In parentage cases, the court would also interdict testing for
complying with requests which would not be in the best interest of justice
including in the best interest of a child. An instance would be where the
child is very unwell or where there were credible threats of violence, if the
results disclosed a particular outcome.
68. It is important to note, however, that having regard to the current
ambiguous situation in New Zealand, on the scientific testing, the New
Zealand Law Commission in its 88th report titled as New Issues in Legal
Patterns submitted in April, 2005 has recommended that the "persistent
refusal of some people to comply in good faith with court direction can
have serious consequences for children and other parties involved". The
Law commission has further suggested that the court has the option of
issuing a warrant for enforcement of the order by a named person (i.e.
the prospective father, a social worker or the police). Once the warrant
was issued, the named person would have the legal right to remove the
child or and take him or her to be tested without impediment. A penalty
has been prescribed for intentional obstruction. The statutory authority
being proposed to be given to the court to order DNA testing is urged to
be in accordance with the approach taken by the court of appeal in T v. S
IA No.10394/2011 in CS(OS) 700/2008 36 [Guardianship] as well as in accordance with New Zealand‟s responsibility
to discharge international obligations.
69. So far as the position in India is concerned, the validity of a civil
court's direction for conducting a medical examination as discussed
by the Supreme Court in Sharda vs. Dharmpal has been cited in para
164 of Selvi (supra) as well in the following terms :-
"164. We were also alerted to some High Court decisions which have relied on Kathi Kalu Oghad (supra) to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v. Dharampal, (2003) 4 SCC 493. In that case, the contention related to the validity of a civil court's direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. It was observed, at p. 508:
―32. Yet again the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil
Procedure and the Evidence Act, has an inherent
power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete
justice to the parties to the suit.
33. Discretionary power under Section 151 of the
Code of Civil Procedure, it is trite, can be exercised also IA No.10394/2011 in CS(OS) 700/2008 37 on an application filed by the party.
34. In certain cases medical examination by the
experts in the field may not only be found to be
leading to the truth of the matter but may also lead to removal of misunderstanding between the
parties. It may bring the parties to terms.
35. Having regard to development in medicinal
technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so.
36. In matrimonial disputes, the court also has a conciliatory role to play - even for the said purpose it may require expert advice.
37. Under Section 75(e) of the Code of Civil
Procedure and Order 26, Rule 10-A the civil court has the requisite power to issue a direction to
hold a scientific, technical or expert investigation.‖
The decision had also cited some foreign precedents dealing with the authority of investigators and courts to require the collection of DNA samples for the purpose of comparison. In that case the discussion centered on the `right to privacy'. So far, the authority of investigators and courts to compel the production of DNA samples has been approved by the Orissa High Court in Thogorani v. State of Orissa, 2004 Cri L J 4003 (Ori).‖
70. The arguments by Mr. Burqi, learned counsel for the defendant no.1
that the direction to submit to DNA testing was violative of the rights of a
defendant no. 1 have been pressed largely on the ground of violation of
Article 21 of the Constitution of India placing reliance on the judgment of
the Supreme Court. Placing reliance on the discussion in Sharda, the
same stand rejected by this court on 23rd December, 2010 and by the
Division Bench on 7th February, 2011. The above discussion would show
that such argument has also been rejected in the discussion on this very
issue by the Supreme Court in Selvi (supra).
IA No.10394/2011 in CS(OS) 700/2008 38 This very contention is now raised against compulsive testing in
implementation of the order.
71. A Full Bench of the Andhra Pradesh High Court in the judgment
reported at AIR 2001 AP 502 M. Vijaya vs. Chairman and Managing
Director Singareni Collieries Co. Ltd. has had occasion to consider the
question in the context of whether compelling a person to take the HIV
test amounts to denying the right to privacy? The court held as follows :-
"52. There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article
47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion will not be in breach of Article 21 of the Constitution‖ (Underlining supplied)
This judgment has been referred to by the Supreme Court in para
63 and 64 of Sharda vs. Dharmpal (supra).
72. The court also noticed there are several legislations which envisage
mandatory medical tests. It was also noticed that there are legislations
which permit divorce on grounds as impotency, schizophrenia etc on
which authoritative and binding conclusions cannot normally be arrived at
without medical examination to ascertain existence of the condition. On
these issues in paras 61, 62, 64 and 65 of Sharda vs. Dharmpal
IA No.10394/2011 in CS(OS) 700/2008 39 (supra), the court discussed the legal position thus :-
"61. Having outlined the law relating to right to privacy in India, it is relevant in this context to notice that certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain medical or other tests.
62. By way of example, we may refer to Section 185, 202, 203, 204 of the Motor Vehicles Act, Section 53 and 54 of the of the Code of Criminal Procedure and Section 3 of the Identification of Prisoners Act, 1920. Reference in this connection may also be made to Sections 269 and 270 of the Indian Penal Code. Constitutionality of these laws, if challenge is thrown, may be upheld.
xxxx
64. It was observed:
"Yet another aspect of the matter is whether compelling a person to take HIV test amounts to denying the right to privacy? In Kharak Singh v. State of U.P., Govind v. State of M.P. and Ors. cases, the Supreme Court held that right to privacy is one of the penumbral rights of Article 21 of the Constitution. In all situations, a person can be asked to undergo HIV test with informed
consent. If a person declines to take a test, is it permissible to compel such person to take the test? The question is whether right to privacy is violated if a person is subjected to such test by force without his consent? By the end of 1991, 36 federal states in USA enacted legislations regarding informed consent for HIV test. These legislations intended to promote voluntary test and risk reduction counselling. In USA, law also applies for involuntary tests and disclosure of
information about the people in prisons, mental
hospital, juvenile facilities and residential homes for mentally disabled persons. (See AIDS Law Today - Scott Burry and others published by Yale University - 1993).
In India there is no general law as such compelling a person to undergo HIV/AIDS test. Indeed, Article 20 of the Constitution states that no person accused of any offence shall be compelled to be a witness against himself. Be that as it may, under Prison Laws, as soon as a prisoner is admitted to prison, he is required to be IA No.10394/2011 in CS(OS) 700/2008 40 examined medically and the record of prisoner's health is to be maintained in a register. Women prisoners can only be examined by the matron under the general or special powers of the Medical Officer. As per Section 37 of the Prisons Act, any prisoner wanting to be medically examined or appearing to be sick has to be reported before the Jailor who in turn is liable to call the attention of the Medical Officer in that behalf and all the directions issued by the Medical officer are to be recorded.
65. It was also noticed:
"Under the ITP Act, the sex workers can also be
compelled to undergo HIV/AIDS test. When sex workers are detained in corrective institutions or welfare homes either under Section 10A or under section 17(4) or 19(2) of the Act, there are adequate provisions for medical examination. There are also provisions in segregating rescued women who are suffering from
venereal diseases. We may also notice that Section 2 of Dissolution of Muslim Marriage Act, 1939, Section 32 of Parsi Marriage and Divorce Act, 1936, Section 10 of Indian Divorce Act, 1869, Section 13 of Hindu Marriage Act, 1956 and Section 27 of the Special Marriage Act, 1954 make incurable venereal diseases of either of spouses a ground for divorce. Further under
Sections 269 and 270 of the Indian Penal Code, 1860, a person can be punished for negligent act of spreading infectious diseases.
In cases of divorce on the ground that the other spouse in suffering from HIV/AIDS or in case under sections 269 and 270 I.P.C., can the person be compelled to give blood specimen for HIV test. The immunity under
Article 20 does not extend to compulsion of giving of blood specimens."
(Emphasis supplied)
73. The Supreme Court of India in Sharda (supra) has held that
"........ when there is no right to privacy subsequently conferred by Article
21 of the Constitution of India and with the extensive interpretation of the
IA No.10394/2011 in CS(OS) 700/2008 41 phrase "personal liberty", this right has been read into Article 21, it
cannot be treated as an absolute right". It was further held that if there
were a conflict between fundamental rights of two parties, that right
which advances public morality would prevail as would apply in civil
litigation. The Supreme Court summed up its conclusions in para 80
noticed above.
74. Article 8 of the European Convention on Human Rights defines right
to privacy as follows :-
"(1) Every one has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."
Therefore, the right to privacy would be subject to such action as
may be lawfully taken for the prevention of crime or protection of health
or rights and freedoms of others.
75. Reverting to the jurisdiction of the court to compel a blood sample,
reference may usefully be made to observations of the Allahabad High
Court in 1976 Cri.L.J. 1680 Jamshed vs. State of UP in the context of
criminal law jurisdiction :-
"It is true that Section 53 refers only to examination on the request of a police officer, but if such a power is given to a police officer, the Court should have a wider power for the purposes of doing justice in criminal cases. The other relevant IA No.10394/2011 in CS(OS) 700/2008 42 provision in the Criminal Procedure Code is Section 367, sub- section (1), which runs as under:
―If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.
This special provision has been made in cases where death sentences have been awarded. In other cases, an appellate court has the power to take additional evidence, but it seems that, so far as cases of death sentences are concerned, the Legislature intended to confer a wider power on the High Court, namely that it may not only take additional evidence but can also make a further enquiry into any point bearing upon the guilt or innocence of the convicted person. If the law gives an authority to make further enquiry, it can also be deemed to have given ancillary powers to the High Court to make such directions and take such steps as may be necessary for the purposes of such further inquiry. Section 482 of the Criminal Procedure Code provides for inherent powers of the High Court to make such orders as may be necessary to secure the ends of justice, We, therefore, feel that these provisions of law as embodied in the Criminal Procedure Code, fully cover such a procedure and although there is no specific provision, yet we think that the taking of blood for the aforesaid purpose is warranted by these provisions of law. The second contention of the learned Counsel for the appellant, therefore, also fails.‖
76. As noticed above, there is no specific statutory regime in India
under civil law which empowers the court to direct the medical
examination including the blood test for DNA profiling of the parties or
any third party to a case where paternity of a child is in issue. Such a
position subsisted before the courts in England prior to the amendment to
the Family Reforms Act. In the judgment pronounced on 14th March,
1963 reported at [1963] 2 All E.R. 386, W. v. W. The question before IA No.10394/2011 in CS(OS) 700/2008 43 the court was whether the wife can be compelled against her will to
undergo such a test. Cairns, J, it was observed that "no such application
as this has ever been made in this country before". The court rejected
the argument of the counsel for the petitioner expanding the definition of
the said statutory provision regarding samples which could be taken or
appointment of experts. In this pronouncement, it was ruled that medical
inspections have, in some circumstances, been authorised by statute. For
instance under the Old Workman‟s Compensation Act, 1275. So far as the
probate, divorce and admirality division was concerned, medical
inspections were provided for in rule 24 of the Matrimonial Causes Rules,
1957. It was held that these inspections were not to which a party was
under any compulsion to submit holding as follows :-
"If this argument is right, it would mean that in the case of a plaintiff alleging that he had suffered some internal injury by the defendant's negligence, it would be open to the court to direct that an extensive exploratory operation should be made by a surgeon on the plaintiff's body against his will. I cannot for a moment suppose that the rules have any such effect.‖
It was observed "far more precise wording of the statute" would be
needed to authorise such interference with a person‟s body. On the issue
of the submission of the husband‟s counsel for the operation of taking a
sample of blood being of trivial character, involving no danger or
discomfort and that the interference with the person of the wife therefore
be deminimus, the court held as follows :-
―If I considered this to be a sustainable contention I should IA No.10394/2011 in CS(OS) 700/2008 44 have wished to have medical evidence to support counsel's statement, but it is conceded that the operation involves puncturing the skin and extracting some small quantity of blood. Obviously to do this to an unwilling person would be an assault unless authorised by law and I can find no such authority.‖
Absent statutory provision, the court rejected the application for
compelling the wife or the child to submit to a blood test.
77. Important case law on this issue including dissents and reservations
expressed even in jurisdictions where statutory provisions exist on the
issue has been noticed above.
78. The level of privacy protection thus may also depend upon the
context in which the established standards are applied and the manner in
which the right to privacy is challenged. Instances of mandatory testing
which has been considered reasonable are available depending on the
context in which mandatory testing was involved, and upon application of
the doctrine of "probable cause"; "compelling need", "public interest"
"decreased expectation of privacy", "maintenance of law and order";
"public health", "public safety" provided that the testing was performed in
a scientific and accurate manner bearing in mind the privacy concerns of
the individual;
79. It is therefore evident that it is only in exceptional cases, that
human rights law has justified carrying out of compulsory or mandatory
medical examinations which may be bodily invasive and interfered with a
person‟s physical integrity. Such forced interventions with an individual‟s IA No.10394/2011 in CS(OS) 700/2008 45 privacy under human rights law in certain contingencies has been found
justifiable when the same is founded on a legal provision ; serves a
legitimate aim ; is proportional ; fulfils a pressing social need ; and, most
importantly, on the basis that there is no alternative, less intrusive,
means available to get a comparable result.
80. It is trite that right to privacy and confidentiality is not an absolute
right and could be reasonably curtailed. In case of conflict between the
two fundamental rights, it is the right which would advance public interest
and public morality would be enforceable.
It is important to note that in all these circumstances; concerns of
not only permissibility of the testing, but also of the proportionality or the
limits of the testing as well as the confidentiality attached to the
disclosure/preservation of the result are required to be addressed.
81. In para 79 of Sharda vs. Dharmpal (supra), the Supreme Court
after considering the jurisprudence from other countries on the issue of
taking a sample without consent of a person observed as follows :-
―79. At this stage we may observe that taking of a genetic sample without consent may in some countries e.g. Canada be viewed as a violation of the person's physical integrity although the law allows such forced taking of sample. But even this practice was held to be valid when the sample is collected by a health care professional. Collecting samples from the suspects for DNA tests in some countries have not been found to be violative of right of privacy.‖
82. Parentage testing has been considered by the Australian Law
IA No.10394/2011 in CS(OS) 700/2008 46 Reforms commission recently when it published the results of the inquiry
conducted jointly with the NHMRC‟s Australian Health Ethics Committee
titled "Essentially Yours-The Protection of Human Genetic Information in
Australia", a two volume, 12000 page report, containing 144
recommendations about how to deal with legal, ethical and social
implications of the "New Genetics". The report covers a vide range of
areas including human genetic research and genetic databases, genetic
privacy and discrimination as well as regulation of the use of genetic
testing and information in employment, insurance, immigration,
parentage testing, sports etc. One of the main recommendation on the
issue under consideration in the final report is to the following effect :-
―(ix) DNA parentage testing should be conducted only with the consent of each person sampled, or pursuant to a court order. Where a child is unable to make an informed decision, testing should proceed only with the consent of both parents, or a court order.‖
83. A person may express willingness and consent to undergo a
medical examination and treatment in instances requiring mandatory
medical examination and thereby accept the intrusion or breach of privacy
and physical integrity and autonomy.
Consent however is not the mere acceptance of medical
intervention but must be a voluntary and sufficiently informed position,
protecting the right of the patient to be involved in medical decision
making and assigning associated duties and obligations to health care
IA No.10394/2011 in CS(OS) 700/2008 47 providers. It has been described as an ethical and legal normative
decision to submit from promotion of patient autonomy, self-
determination, bodily integrity and well being. The important components
of informed consent require respect for legal incapacity; respect for
personal autonomy; and completeness of the information furnished to the
patient.
84. So far as consent by a person to a medical examination including
providing a bodily sample is concerned, it envisages such "informed
consent" which would incorporate the agreement of the testee to be
examined by a particular specialist as well as consent to all the medical
examinations he would be subjected to. The testee would also indicate
what the examiner is allowed to do with the disclosure of the result of the
examination and test. The understanding should be clear and the consent
unrestricted and free as per a report of the Special Rapporteur on the
"Right of Everyone to Enjoyment of the Highest Attainable Standards of
Physical and Medical Health" which was considered by the United Nations
General Assembly in its 64th Session as item no. 71b on 10th August,
2009 in the discussion on "Promotion and Protection of Human Rights :
Human rights questions, including alternative approaches for improving
the effective enjoyment of human rights and fundamental freedoms."
85. From the above discussion, it is evident that wheresoever the
legislature intended the medical examination to be mandatory, it is so
IA No.10394/2011 in CS(OS) 700/2008 48 prescribed. This is borne out from the statutory provisions in Sections 53,
53A and 54 of the Criminal Procedure Code, Sections 6(2)A and 15(5)A of
Immoral Traffic (Prevention) Act, 1956; Sections 185, 202, 203, 204 of
the Motor Vehicles Act; Sections 5 and 6 of the Identification of Prisoners
Act; Section 11 of the Workmen Compensation Act; Section 19 of the
Mental Health Act, amongst others.
Such being the legislative intent, it is necessary to consider the
authority of the court to compel a medical examination pursuant to a civil
court‟s direction to facilitate adjudication.
86. The reluctance of the civil courts in the aforenoticed judicial
precedents to hold that a party could be compelled to give a blood test for
DNA profiling is to be found in the lack of specific statutory provisions
permitting the same.
87. In civil litigation involving parentage claims and denials, there is
hardly any legislation or jurisprudence permitting use of force on an adult
capable of giving informed consent for drawing a bodily sample for DNA
profiling. The plaintiff before me, could not point out even a single
instance of compelling non-intrusive sample. In the research which was
possible in the little time available, I could not come across any instance
where an adult including an alleged father who has refused to give the
sample, has been forcibly confined for the purpose.
88. In 1972 Cri.L.J. 1392 Sulabai vs. Jagannath & Anr., the trial
IA No.10394/2011 in CS(OS) 700/2008 49 court was executing an order of maintenance made in favour of the
petitioner which was being resisted by the other side on the ground that
she had committed adultery and given birth also to a child subsequent to
the maintenance order. The magistrate directed the petitioner to remain
present before the medical officer and, without ascertaining whether the
petitioner was willing or not and without obtaining her consent, passed
the order compelling her to submit herself to medical examination. The
High court was of the view that "in the absence of any valid law providing
for it, the order contravenes the fundamental right guaranteed by Article
21 of the Constitution of India". The court placed reliance on the
judgment of the Andhra Pradesh High Court reported at AIR 1950 AP
207 Pulavarthi Sreeramamurthi vs. Pulavarthi Lakshmikantham
and of the Gujarat High Court in Bipinchandra vs. Madhuriben AIR
1963 Guj 250 wherein it was held that the court had no power to compel
an unwilling party to be medically examined.
89. In Goutam Kundu (supra), the court has also referred to the
pronouncement in AIR 1986 MP 57 Hargovind Soni vs. Ramdulari. It
was held by Madhya Pradesh High Court as follows :-
―The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence. But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal.‖
90. A single Bench decision of the Karnataka High Court in the IA No.10394/2011 in CS(OS) 700/2008 50 judgment reported at AIR 2000 Kant 50 Smt. Ningamma & Anr. Vs.
Chikkaiah & Anr. on the issue can be usefully referred. The court was
concerned with the issue as to whether the trial court could direct the
parties to undergo the blood grouping test in exercise of powers under
section 151 of the CPC where the defendant had opposed the grant of
maintenance to the plaintiff denying that he was the father of the second
plaintiff. The court placed reliance on the observations in para 18 of
Goutam Kundu (supra) of Ningamma. In para 23 of Ningamma
(supra) the Karnataka High Court held that the trial court directions to
the parties to appear for blood grouping test and upon failure to appear,
an adverse inference would be drawn is nothing but an act of the court
which was in excess of the jurisdiction, as which the court had no
jurisdiction to direct; that the impugned order was against the law.
91. In para 16 of Goutam Kundu, the Supreme Court approved the
findings of the Kerala High Court in Vasu vs. Santha, 1975 Ker.LT 533
wherein it had held that "before a blood test of a person is ordered, his
consent is required. The reason is that this test is a constraint on his
personal liberty and cannot be carried out without his consent. Whether
even a legislature can compel a blood test is doubtful...................." The
Supreme Court also held that the learned Judge was also correct in
holding that there was no illegality in refusing the blood test.
92. On the question being considered, the following caution by Justice
IA No.10394/2011 in CS(OS) 700/2008 51 Brandeis in Olmstead v. United States (1928) 48 S.Ct.564 comes to
mind:-
―Experience should teach us to be on our guard to protect liberty when........ purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.‖
93. The Civil Procedure Code does not contain any provision which is
pari materia to Section 53 of the Criminal Procedure Code whereby the
police officer is specifically empowered to do the several acts which have
been considered heretofore. The authority or source of the power of the
civil court to direct a medical examination has been found by the
Supreme Court in the inherent power of the court under Section 151 of
the CPC and the general provisions regarding inspections in Section 75(e)
and order 26 rule 10A of the CPC, the above discussion would suggests
that a direction to provide a bodily sample for DNA profiling in the facts
and circumstances of a case may be within the parameters of permissible
intrusion on bodily integrity.
94. The CPC permits securing the presence witness who does not
comply with the court summons, by issuance of a warrant of arrest.
Lawful and deliberate non-compliance with a court order results in
initiation of contempt of court proceedings which may result in the
incarceration of a person. However, physical confinement for forcible
drawing of a blood sample or sample of any other bodily substances is not IA No.10394/2011 in CS(OS) 700/2008 52 envisaged in any statutory provision governing civil litigation or under any
tenet of justice.
95. It is noteworthy that this issue in the judgment dated 23rd
December, 2010, my learned brother, Bhat, J had observed as follows :-
―37. The Court notes that the above Law Commission proposal does not allow a third party to be compelled to undergo such tests against his liberty and is confined in its applicability to the husband of the mother. However, as the Court in Sharda and Jena (Supra) observed, there is no violation of the right to life, or privacy, or such third party, in directing a DNA test, to be undergone by him. The three Judge Bench in Sharda (supra) stated in no uncertain terms that a direction, (after taking into consideration all relevant facts), to the person, to undergo such a test is not an invasion of his right to life. Bhabani Prasad Jena(supra), after noticing all the previous judgments, including Goutam Kundu and Sharda, on the point, affirmed the power of the Court to direct a DNA test by one of the parties, and stated that it must be exercised with caution, after weighing all "pros and cons", the evidence, and satisfying itself if the "test of `eminent need'" for such an order, is fulfilled. This Court is therefore, bound by those principles.‖
96. In the case in hand, this court in the judgment dated 23rd
December, 2010 has interpreted the existing statutory provisions,
extrapolated therefrom and relied on judicial pronouncements to issue a
direction to the defendant no. 1 to furnish the sample.
97. In AIR 1993 SC 2295 Goutam Kundu vs. State of West
Bengal, the Supreme Court was concerned with an issue with regard to
the blood grouping test to establish paternity and maternity of the child
was involved in a petition under section 125 of the CrPC. The court did
not have occasion to consider the more developed DNA profiling now IA No.10394/2011 in CS(OS) 700/2008 53 available which is the only scientific tool to ascertain paternity issues.
98. The issue is compulsorily drawing of the blood sample of the
defendant no. 1 to establish the plaintiff‟s parentage pursuant to this
court direction in his civil paternity declaration suit.
99. Mandatory testing in a case raising parentage issues would involve
important concerns of its application in discriminatory manner and/or with
disregard for the privileges associated with a person‟s physical integrity as
well as privacy concerns. The adverse impact of such testing upon an
unwilling person, the element of violence which may be entailed, the
extreme nature of the intrusion and violation of a person‟s physical person
may leave irreparable scars. The possibility of misuse, however plausible
or remote it be, cannot be overlooked by the courts. Absent any
legislatively prescribed implementing agency, the court may be compelled
to take assistance of the police authorities for the purposes of executing
an order of compulsory testing. The important question of the place
where the person ordered to be tested was to be confined would also
arise. The propriety and permissibility of such action is certainly a matter
of grave concern keeping in view the adverse civil consequences which
may result.
100. Even if this court were to conclude that it was permissible for the
defendant no.1 to be compulsorily tested, the enforceability of such an
order is doubtful. Such forcible drawing of the sample would necessitate
IA No.10394/2011 in CS(OS) 700/2008 54 physically confining the defendant no. 1; producing him before medical
experts and forcibly constraining him for the purposes of drawing a
sample. Such a course would be an unwarranted intrusion on the rights
of the defendant no.1 under Article 21 of the Constitution and is
completely impermissible. The contention on behalf of the plaintiff that
the defendant no.1 is required to be physically confined and held to give a
blood sample to ensure compliance of the order dated 23rd December,
2010 is therefore devoid of legal merit and is hereby rejected.
What are the consequences which would visit the defence of the defendant no.1 upon his refusal to comply with the court direction?
101. It has been argued by Mr. Burqi that in the order dated 23rd
December, 2010 the court had failed to consider the consequences of
non-compliance of an order for submission or taking of sample as have
been laid down by the Supreme Court in AIR 2003 SC 3450 Sharda vs.
Dharmpal. It is urged that given the law laid down by the Supreme
Court, the defendant no.1 is justified in refusing to submit the blood
sample without incurring any consequences.
102. So far as a child‟s rights are concerned, the ascertainment of one‟s
biological origins is essential not only in the social context or satisfaction
of a child‟s right to know his origins. There are several additional
imperative justifications beyond the concerns for the same which may
IA No.10394/2011 in CS(OS) 700/2008 55 usefully be summed up thus:
(i) The identity of a child as envisaged in Articles 8 and 9 of the United Nations Convention on the Rights of the Child is preserved which enables the child to understand the social legacy; traditional, cultural and ideological heritage ; the circumstances of the child‟s birth and identity of the father. The moral justification which underlines; the right of every person to know one‟s origin has often been termed as informational self- determination.
(ii) The child‟s interest in learning medical histories and information of his/her biological parents which would enable the child to be aware of genetic predispositions to certain illnesses; anticipate disease; facilitate accurate diagnosis and efficient treatment. It may allow a child to take preventive medical measures or undertake lifestyle adaptations to prevent disease, if possible or cope with them. In the medical sense, such information would thus enable prevention of any hereditary disease.
(iii) Knowledge of biological origins would enable prevention of incestuous relationships.
(iv) The last but not the least, the financial interest of a child in accessing a share in the estate of the putative father, essential especially in the Indian context given some of the customised laws of succession.
(v) The child could enforce the right to be brought up by his or her father/mother and family.
103. In order to rule on the consequence of the defendant no.1‟s refusal,
it is necessary to dwell on the question of why DNA profiling and what is
its value and significance? What is the weight to be attached to this
scientific test, its result as well as a refusal by the party so ordered.
104. Before proceeding further, it is essential to understand DNA
profiling, its importance and need. It is also necessary to consider the
intrusiveness of blood sample collection procedure.
105. A single Bench pronouncement of the High Court reported at AIR
IA No.10394/2011 in CS(OS) 700/2008 56 2009 Madras 64 Veeran vs. Veeravarmalle & Anr. was rendered in
facts which were similar to the instant case. In para 13, 14, 15 & 16 the
court had discussed the nature of the DNA test in the following terms :-
―13. On-Site Medical Testing Inc., California speaks about the paternity test, wherein it is stated as follows:
―D.N.A. paternity testing uses D.N.A., the biological basis of inheritance, to prove or disprove the
relationship between a child and an alleged father. It is based on the fact that we inherit half of our D.N.A. from our father and half from our mother. Cells are collected from the child, the alleged father, and the mother if possible. Using sophisticated laboratory procedures, genetic profiles are created for each individual. By comparing these profiles, it is possible to statistically prove whether the alleged father is or is not the child's biological father.‖
106. Dr. A.K. Sharma from the Central Forensic Science Laboratory,
Directorate of Forensic Science, Ministry of Home Affairs, Government of
India, 30 Gora Chand Road, Park Circus Kolkata in an article titled "DNA
Profiling, Social, Legal Or Biological Parentage" published in the Indian
Journal of Human Genetics (September-December, 2007, Vol.13, Issue 3)
has written that the analysis in DNA profiling is based on a comparison of
the results of biological evidence with reference samples (blood or oral
swab). Dr. Sharma writes that "Indirect references of close blood
relatives of the person to be identified are usually desired for establishing
identity. A DNA profile for a multiplex of 15 autosomal short tandem
repeat (STR) markers is generated and obligatory alleles are compared
with that of parents, siblings, or close relatives for kinship analysis. An
IA No.10394/2011 in CS(OS) 700/2008 57 inconsistency at two or more loci (considering the mutation rate of STRS)
generally leads to exclusion in a kinship case. Inclusion at all loci is
statistically evaluated by calculating paternity, maternity, or sibship
indices. The success of a DNA case not only depends on the authenticity
of the reference samples but also on the authenticity of the biological
relationship of the donors with the person in question, without which any
comparison is futile".
107. Dr. Sharma emphasises that the authenticity of the reference
sample is essential for an accurate result. He concludes with the following
caution:-
―DNA profiling is the most effective tool for justice in criminal and civil cases. The above-mentioned exceptional situations are rare, but it is important that investigating officers, forensic analysts, and members of the judiciary be aware of the necessity of obtaining authentic biological (genetic) samples and of the problems that may be encountered.‖
108. So far as the scientific accuracy of DNA testing is concerned, the
same has been explained by Ilene Sherwyn Cooper in „Advances in DNA
Techniques Present Opportunity to Amend EPTL to Permit Paternity
Testing‟, N.Y.S. T.B.J. July-August 1999 at 34, 41 (1999) in the following
terms :-
―For paternity applications, the odds that two unrelated people possess the same DNA band pattern have been calculated to be, on average, 30 billion to one. Given that the Earth's population is about 5 billion (only 2.5 billion males), it is impossible to be more sure of a paternity determination with any other available test.‖
IA No.10394/2011 in CS(OS) 700/2008 58 This scientific test has a 99.99% chance of correct conclusions and
is perceived as an objective scientific test which may be difficult for an
individual to refute. Refusal therefore to give a blood sample for DNA
profiling is not seen as legitimate.
109. In an article titled "The Gene Age - A Legal Perspective" by Justice
R.K.Abichandani of the High Court of Gujarat presented in the
Conference on "Impact of New Biology on Justice Delivery System :
Issues Relating to DNA Finger Printing, Intellectual Property Rights and
Ethical, Legal, Social Implications" held by the Centre for DNDA
Fingerprinting and Diagnostics, Hyderabad and NALSAR University of Law,
Hyderabad between 3rd to 5th October, 2003, after detailed analysis on
DNA parentage testing my learned brother has observed as follows :-
―[13.1] Parentage testing refers to testing done to confirm or deny biological parentage of a particular child or individual. Such testing may be conducted by blood group or DNA analysis. DNA parentage testing may exclude a person as the biological parent of a child with certainty but it cannot prove absolutely that a person is the child's biological parent. The test result can, however, provide a probability that a person is the biological parent of a child and, if that probability is sufficiently high, an inference of parentage may be confidently drawn. (See ALRC Discussion Paper 66-Protection of Human Genetic Information - DNA Parentage Testing).
xxx
[13.3] DNA parentage testing may be used to rebut a presumption arising under the Act, or to establish evidence in the circumstances where no presumption arises. A man might seek DNA parentage testing in order to obtain evidence of non-paternity for hte purpose of civil proceedings against the child's mother to prove ―paternity fraud‖ and claim damages for emotional stress and financial loss that he suffered due to such fraud. DNA parentage testing may IA No.10394/2011 in CS(OS) 700/2008 59 provide evidence to show that a person has a biological connection with a deceased person and can be a proof in support of a succession claim. In mass disasters, such as, aeroplane crashes and the World Trade Centre collapse, DNA parentage and relationship testing is increasingly used in identifying human remains where the body of the deceased is no longer recognizable.‖
110. In the judgment of the Madras High Court reported at AIR 2009
Madras 64 Veeran vs. Veeravarmalle & Anr. on the issue of the
accuracy and the nature of the DNA test, the court held as follows :-
"14. The Eastern Biotech & Life Science Company in UAE which is offering D.N.A. Test in Kuwait, Jordan, Lebanon, Bahrain, Qatar, Oman, Saudi and Syria speaks about the paternity test, wherein it is stated as follows:
―Paternity testing requires a painless sample from both the child and possible father. Even without a sample from the mother, D.N.A. paternity test
results are up to 99.9999% accurate-that's one-
in-a-million odds your results are incorrect.‖
15. The above analysis clearly shows that if the mother is not available, from the sample collected from the child and the alleged father, the paternity test can be conducted. Thus, if D.N.A. test is performed without the mother's sample, it requires additional analysis and it will take a few days longer to complete the same. However, the accuracy of the results will not be affected.
16. The above discussions make it very clear that it is not always necessary to conduct D.N.A. test on both the alleged father and mother and the D.N.A. test performed on the father will also show whether a particular child was born to the person on whom such test has been performed. While so, the argument advanced on the side of the petitioner that without conducting D.N.A. test on the second respondent, the alleged mother of the first respondent, there will be no useful purpose, by directing the petitioner alone to subject himself for D.N.A. test, is totally erroneous. In the fast technology development in scientific field, it is nothing wrong in directing a person to undergo D.N.A. test, which will enable the Court to arrive at a proper conclusion. Furthermore, the petitioner, who asserts that he had no relationship with the second IA No.10394/2011 in CS(OS) 700/2008 60 respondent and the first respondent was not born to him, to prove his assertion, can very well subject himself for the said test to prove his case beyond reasonable doubt. In fact, the test result will amply prove his case also.‖
(Emphasis supplied)
111. Reliability of the scientific evidence depends upon three factors; the
validity of the underlying scientific principle ; the validity of the technique
applying the principle ; and the proper application of the technique on a
particular occasion. Each individual has an entirely unique genetic
signature (except in the case of identical twins) derived from DNA
configuration.
112. DNA profiling has been statutorily recognized in the Code of
Criminal Procedure and the aforenoticed judicial precedents as reliable
scientific evidence.
113. Value is attached to genetic finger printing and DNA profiling as it
would be difficult for the suspect or the person being tested to harder to
fabricate with the evidence. It is therefore difficult to undermine the
value of the test.
114. DNA fingerprinting has thus established high specificity, has
extraordinary probative properties and is statutorily recognised. DNA
samples can be obtained from blood; tissue; pulled head hair samples
with intact roots; fingernail clippings; bone marrow; tooth pulp; dried
blood stains and biopsy samples. Genetic fingerprinting falls outside the
privilege against self-incrimination and is within the parameters of
IA No.10394/2011 in CS(OS) 700/2008 61 reasonable search and seizures provided there exists the element of
cooperation as required for the purposes of taking, say, a blood or a
semen sample.
115. The above narration adequately establishes the unimpeachable
importance and value attached to the affirmative nature of the results of
DNA profiling in a case where parentage is in issue. The refusal of the
defendant no. 1 to furnish the sample and its consequence have tobe
tested against these standards.
116. An issue of paternity may be established in three ways. Firstly, in
accordance with the marital presumption rule (Section 112 of the
Evidence Act); (or,) recognition of the paternity by the party; or, lastly by
a judicial determination of paternity. The instant case is of the third kind.
117. From the above discussion, it is manifest that there is no difficulty if
the person consents to the taking of intimate bodily samples. If the
specimen had been obtained and the results indicate that the alleged
father is the father of the child, a presumption of paternity is created.
Such presumption can be rebutted only by clear and convincing evidence
that the results of the genetic test are not reliable in that particular case.
Difficulty arises if the taking of the sample is refused. The same may be
for genuine or good causes or without.
118. In the case before the Family Division of England reported at 1988
(22) All ER 500 McVeigh v. Beattie, the appellant had resisted the
IA No.10394/2011 in CS(OS) 700/2008 62 application for blood test on which nevertheless directions for the test
were made. The appellant subsequently indicated that he was not willing
to submit himself to blood tests if there was a further application for a
blood test direction. As the appellant did not submit to the blood test
when further direction was made, the trial judges drew the inference that
the appellant failed to comply with the blood test directions because he
had sexual intercourse with the respondent and he knew that the blood
test would show that he was probably the father of the respondent‟s child.
Wood, J considered the question as "Was the appellant's failure or refusal
to comply with the blood test direction evidence which was 'other
evidence', i.e. capable of construing corroboration of the complainant's
case that it was the appellant who was the father of her child or, to use
the words of Sellers LJ in Simpson v. Collinson (1964) 1 All ER 262 at p.
267, was it evidence that shows or tends to show the story is true."
It was stated by Wood, J. that it has been held that a report of a
blood test relating to the party could constitute corroborative evidence.
119. In the context of refusal by an adult party to submit to a blood test,
the observations of Lord Denning MR in the judgment reported at 1968
(1) All ER 20 entitled Re L at 26 (1969) p 119 at 159 shed valuable light
and deserve to be considered in extenso:-
"Both counsel for the husband and counsel for the wife felt bound to concede that, under these sections, the Court could not order an adult to submit to a blood test. A blood test which involves the insertion of a needle is an assault, unless IA No.10394/2011 in CS(OS) 700/2008 63 consented to. It would need express statutory authority to require an adult to submit to it. ((1963) 2 All ER 841 (1964) P. 67). If these sections do not authorise the court to order an adult to have his blood tested, I do not see that they authorise the court to make such an order in the case of an infant. A test of the child's blood would be useless unless there were tests of the adults also. But, I would say this. If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the court in any civil proceedings (no matter whether it be a paternity issue or an affiliation summons, or a custody
proceeding) to treat his refusal as evidence against him, and may draw an inference therefrom adverse to him. This is simply common sense. It is in keeping with the rule that in a nullity case, if a party refuses to be medically examined, the court may infer that some impediment exists pointing to incapacity (see W. v. W. (otherwise L.) (1912) P. 78). Moreover, being a rule of evidence, it applies not only to the High Court but also in the magistrates' court, and to any court of the land."
(Emphasis supplied)
120. In the context of criminal law, the refusal by a person without
reasonable excuse to supply a sample for scientific examination arose for
consideration before the Rajasthan High Court in the judgment reported
at 1991 Cri.L.J. 939 Miss. Swati Lodha vs. State of Rajasthan &
Anr. The court was concerned with the refusal to submit to a blood test
by a person accused of the offence of rape in which a child had been born
to the victim. In para 16 of the pronouncement, the court considered the
value to be attached to the test also and held as follows :-
―16. A review of the above law, would go to show the following propositions are well-settled :--
(1) Report of a blood-test is capable of amounting to corroboration of the statement of the complainant. It amounts to corroboration even under the common law. The nature of the corroboration would necessarily vary according to the particular circumstances of the offence IA No.10394/2011 in CS(OS) 700/2008 64 charged. The test applicable to determine the nature and extent of the corroboration is the same whether the case falls within the rule of common law or within that class of offences for which corroboration is required by statute. A Criminal Court can make a direction for a blood-test to be taken by taking blood-sample of the complainant, accused and of the child. In certain cases, where it is contrary to the interest of a minor, the Court may not make a blood-test direction.
(2) The Court cannot order an adult to submit to blood- test. A blood-test which involves insertion of a needle in the veins of a person, is an assault, unless consented to. It would need express statutory authority to require an adult to submit to it. This is based on the
fundamental that human body is inviolable and no one can prick it.
(3) Where a Court makes a direction for a blood-
test, and the accused fails or refuses to comply
with the blood-test direction, the Court can in the circumstances of the case, use the refusal or
failure of the accused to submit to blood test as a corroborative evidence against him. If a party
refuses to submit to blood-test, the Court may infer that some impediment existed which pointed out towards the implication of the accused.‖
(Emphasis supplied)
121. On the issue of paternity, it thus requires to be considered whether
the refusal to supply a sample for scientific examination is without
reasonable excuse which is capable of amounting to corroboration of the
evidence of the plaintiff to establish that the defendant no. 1 was his
father or not. In this regard, in 1991 Cri.L.J. 939 (1) Swati Lodha v.
State of Rajasthan on the issue of what is "corroborative evidence"
placing reliance on Mash v. Darley, (1914) 3 KB 1226, the Rajasthan
High Court observed as follows:-
"12. The question, what is corroborative evidence, came up IA No.10394/2011 in CS(OS) 700/2008 65 for consideration in Mash v. Darley (1914) 3 KB 1226. Dealing with the question, Buckley LJ observed at page 1231 of the report as follows:--
"Corroborative evidence, I conceive, may be found either in admissions by the man or inferences properly drawn from the conduct of the man.
xxx
(13) Thus, within the criminal law, a refusal without reasonable excuse to supply a sample for scientific examination has been capable of amounting to
corroboration.‖
122. In Swati Lodha (supra), the court noticed that the following
questions were framed by learned Judges of the Family Division in
England:-
"What is the argument against such inference being capable of such corroboration. It is said that a refusal points to no conclusion, ' because a blood test does not, prove anything; it may exclude, but, if it does not, then it will only place the respondent within a bracket of men, usually expressed as a percentage, who could have been the father. To this it can be said that a forensic test is not necessarily conclusive one way or the other, and the question might be asked, why not take any steps which could in effect exclude. What has the respondent to fear or to hide I am satisfied that the answer to this question is in the affirmative. If it were to be in the negative, then in my judgment the effect of Section 23 would be severely eroded, if not totally negated. No one would comply with a blood test direction and would be so with impunity."
123. On the consequences of refusal, a Division Bench of the Orissa High
Court in the judgment reported at 2004 Cri.L.J. 4003 Thogorani alias
K. Damayanti vs. State of Orissa & Ors. placed reliance on Sharda
(supra) and in para 18 held that it is, therefore, inevitable to hold that in
the event of the refusal of the opposite party no. 3 to give his blood
IA No.10394/2011 in CS(OS) 700/2008 66 sample for conducting DNA test, an adverse inference can be drawn by
the trial court.
124. In this regard, in para 7 of the judgment in 1972 Cri.L.J. 1392
Sulabai vs. Jagannath & Anr. the court held that in case where a
person refuses to be subjected to medical examination by adopting
obdurate attitude, an adverse inference can be drawn under Section 114
of the Indian Evidence Act observing as follows :-
"7. .....Section 144 of the Indian Evidence Act provides for the presumption by the Court regarding existence of facts. Illustration (g) to that section is to the effect that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. If, therefore, in a case it is shown that a person wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved can be raised against him or her. This section, amongst other things, therefore, enables the Court to draw an adverse inference against a party who refuses to produce a document in his
possession. Similarly, it enables the Court to draw a presumption against a person who can make evidence available to the Court but obstructs the availability of such evidence. If, therefore, a person in a case refuses to submit to a medical examination where the whole case depends on the state of his or her mind and body, I think that it would be open to the Court to draw an adverse inference or presumption against such a
person. Such a person would be on a par with a party who wrongfully withholds evidence in his possession. In Ranganathan Chettiar v. Lakshmi Achi AIR 1955 Mad 546, it was held, that it was not open to a Court to invoke Section 151 of the Code of Civil Procedure for ordering a medical examination of a party against the consent of such party. The High Court observed that the Court might draw any adverse inference against a party who refuses to examine himself or herself. In Bipinchandra v. Madhuriben, cited above, the Gujarat High Court has also held that the fact that IA No.10394/2011 in CS(OS) 700/2008 67 a party with ulterior motives adopts an obdurate and relentless attitude, cannot and does not render the Court helpless to counteract it. Where a party refuses to submit to a medical examination in a case where the whole case depends on the state of his mind and body, it will be open to the Court to draw an adverse inference or presumption against the recalcitrant party. Of course, the adverse inference that may be drawn by any Court is from the circumstances in each case and having regard to the refusal to let the best evidence being brought before the Court. In the present case if the circumstances permit, the learned Magistrate would be justified to draw an unfavourable inference against the petitioner.‖
(Emphasis supplied)
125. So far as the consequences of refusal to submit to a blood test are
concerned, in Goutam Kundu (supra) the petitioner disputed the
paternity of the child as a defence to the wife and childs‟ maintenance
petition under section 125 CrPC and had prayed for the blood group test
of the child to prove this fact. One of the circumstances which had
weighed with the court was the lack of consent to the blood test by the
respondents. The Supreme Court held that there was no illegality in
refusing the blood test for the reason that no consent has been given by
any of the respondents. In this regard, the Supreme Court observed as
follows :-
"The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder v. Bhoppala, AIR 1959 Mad 396) and the earlier decision of the same court in Venkateshwarlu v. Subbayya, AIR 1951 Mad 910 (1). Such an adverse inference which has only a very little relevance here will not advance the appellant's case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the Ist respondent at a time when these children could IA No.10394/2011 in CS(OS) 700/2008 68 have been begotton. That is the only proof that is permitted under S.112 to dislodge the conclusive presumption enjoined by the Section.‖
(Underlining by me)
126. After a detailed consideration of judicial precedents from India and
foreign jurisdictions in para 84 of Sharda vs. Dharmpal (supra), the
Supreme Court held as follows :-
"84. 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 would be made out Section 114
of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession.
127. Upon the refusal to submit a sample for the test by a person, the
foremost question which therefore arises is as to whether the refusal is
malafide or with reasonable cause and justified?
128. In the period before DNA profiling came to recognized, when the
blood grouping test was in vogue for forming opinion as to paternity of
child, such issue arose before the Division Bench judgment of the Calcutta
High Court reported at 1986 (2) HLR 219 Kartick Chandra Dass vs.
Sabita Das. The Division Bench held that on the issue with regard to the
expert opinion regarding blood test, the court would be guided by the
principles embodied in section 45 of the Evidence Act. On the aspect as
to whether or not the court could, even inspite of objections, compel such
blood test and the consequence of the refusal, in para 7, the Division
IA No.10394/2011 in CS(OS) 700/2008 69 Bench had observed as follows :-
"7. While is in true that in case of a person who is sui juris, the court cannot compel him to give sample of his or her blood for ascertaining his blood group. But when inspite of being ordered by the court, a person declines to undergo such blood test the court may at the appropriate stage of the case consider whether or not any adverse presumption ought to be drawn for such refusal to undergo blood test. We must add a word of caution by observing that there could be no inflexible rule that in every case of such refusal to allow blood sample to be taken an adverse presumption ought to be invariably drawn against such person. Same would depend upon the facts and circumstances of each particular case.‖ (Underlining supplied)
129. It is equally important to bear in mind that in a given case there
could be valid apprehensions and genuine reasons for the non-
cooperation and the refusals to supply the bodily sample. Individuals
have different sensibilities. Non-cooperation or refusal to supply the
bodily sample may be the outcome of fear or embarrassment or even
anger. Ignorance about the testing procedure or an outcome or
apprehension about the accuracy of the outcome may also result in non-
cooperation. In these circumstances, the refusal may always not be
because of guilt or machiavellin motives. There may be genuine
apprehensions as to the fate of the sample or the results.
130. There can be no denial that taking of a bodily sample involves an
intrusion into the body which is not so when a fingerprint is taken.
Requiring an individual into providing a sample may be visualized as
inherently humiliating and degrading or involving indignity as compared IA No.10394/2011 in CS(OS) 700/2008 70 to giving oral testimony.
A person may perceive the taking of a sample as inherently
degrading. To construe such a refusal as corroboration may, in such
circumstances, be misleading. Consequently, it cannot be held as an
absolute proposition that in every case, a refusal to submit a bodily
sample must inevitably result in the court drawing an adverse inference
against the person so refusing.
131. On the other hand, there would be instances where the refusal to
provide a bodily sample is unreasonable; obdurate; relentless in attitude,
recalcitrant; without cause and those where the test evidence materially
impacts adjudication on the issue. In such instances, it would certainly be
open to the court to draw an adverse inference or treat the refusal as
corroborative evidence, depending on the admissions on record and the
quality and nature of the evidence placed before the court.
132. Given the value of the DNA profiling of the blood sample in a
paternity action, the refusal of defendant no.1 to comply with the order
dated 23rd December, 2010 may now be examined.
133. It is essential to notice the conduct of the defendant no.1 as
manifest from the court proceedings on the record and. After the passing
of the order dated 23rd December, 2010, the case was listed before the
Joint Registrar on 8th February, 2011. It is noteworthy that the Joint
Registrar is an experienced judge from the Delhi Higher Judicial Service. IA No.10394/2011 in CS(OS) 700/2008 71 It was stated on behalf of defendant no.1 that judgment in FAO(OS) No.
44/2011 had been reserved on 7th February, 2011. The matter was
adjourned. However, pending orders from the Division Bench, the Joint
Registrar had deemed it appropriate to send a copy of the order dated
23rd December, 2010 to the Centre for Cellular & Molecular Biology,
Hyderabad, Andhra Pradesh seeking information.
134. As information was not received from the laboratory, on 19th
February, 2011, a direction for obtaining information from the Institute as
to the manner in which samples are to be taken for DNA testing was
sought. On the next date of hearing i.e. on 19th February, 2011, it was
stated by counsel for the defendant no. 1 that his appeal stood dismissed
by the Division Bench and that a Special Leave Petition had been filed in
the Supreme Court. The matter was thereafter adjourned to 8th March,
2011 by the Joint Registrar.
135. In the meantime, the plaintiff filed IA No. 2981/2011 dated 24th
February, 2011 pointing out that information stood received from the
Centre for Cellular & Molecular Biology to the effect that, in order to cater
to the national needs, the Department of Biotechnology (DBT), of the
Government of India had set up a separate institution by name the
Centre for DNA Fingerprinting and Diagnostics which was headed by Dr. J.
Gowrishankar as its director. The counsel for the plaintiff had disclosed
the details of the address of the centre as were received by him. In this
IA No.10394/2011 in CS(OS) 700/2008 72 background, by way of IA No. 2981/2011, the plaintiff sought
modification of the order dated 23rd December, 2010 so far the
particulars of the laboratory which would undertake the testing. This
application was listed before the court on 25th February, 2011. Notice
was issued to the defendant no. 1 on 1st March, 2011 and 4th March,
2011.
136. No objections to the directions sought in IA No. 2981/2011 were
made by or on behalf of the defendants. Consequently the following
directions were issued by this court on 14th March, 2011 in the presence
of counsel for the defendant no.1:-
"xxxx
3. It is accordingly directed as follows :-
(i) The testing of the samples of the defendant no. 1 shall be effected by taking or drawing appropriate samples in accordance with the requirements of the Centre for DNA Fingerprinting and Diagnostics (CDFD), Building 7, Gruhakalpa 5-4-399/B, Nampally, Hyderabad 500001.
(ii) The Joint Registrar shall ascertain the requirements and formalities required to be completed from the Centre for DNA Fingerprinting & Diagnostics (CDFD), Hyderabad and ensure compliance thereof.
(iii) The parties or their counsel shall appear before the Joint Registrar on 4th April, 2011.
(iv) The defendant no. 1 is directed to furnish such sample on the date and time designated by the Joint Registrar. (v) This application is allowed in the above terms.‖
(Underlining by me)
137. The learned Joint Registrar proceeded further in the matter with
regard to obtaining details of the manner in which samples are to be
taken. Orders dated 4th April, 2011 and 20th April, 2011 were recorded IA No.10394/2011 in CS(OS) 700/2008 73 in the presence of the defendant no.1.
138. On 2nd May, 2011, the Joint Registrar has noticed that requisite
information was received from Centre for DNA Fingerprinting and
Diagnostics, Hyderabad („CDFD‟ hereafter) enclosing the blood collection
kits. Notice was issued for the 1st June, 2011 to the C.M.O, Dispensary
of Government of NCT of Delhi in the premises of the Delhi High Court
with the request to depute a doctor, who can collect the blood sample of
the parties in this case. The case was renotified for 10th May, 2011. The
Joint Registrar also appointed the 1st June, 2011 for the sample collection
and fixed 2.15 p.m. as the time for the same. This order notices that the
communication from the CDFD, Hyderabad had been duly supplied to the
counsel for the defendant no. 1 in court.
139. It is noteworthy that on 6th May, 2011, it was pointed out that the
defendant no. 1 had not paid costs to the plaintiff in terms of the orders
passed on 13th August, 2010 and 7th February, 2011.
140. As noted above, pursuant to orders dated 23rd December, 2010,
the Joint Registrar attached to this court, has interacted with the Centre
for DNA Fingerprinting and Diagnosis, the autonomous institute set up by
the Department of Biotechnology, Ministry of Science and Technology of
the Government of India.
141. The letter dated 21st April, 2011 received from the Centre enclosing
the Flinders Technology Associate („FTA‟) card for collection; shipment,
IA No.10394/2011 in CS(OS) 700/2008 74 archiving, and purification of nucleic acids from a wide variety of biological
samples was sent by the lab. In this communication from the laboratory,
they have prescripted the procedure for collection as follows :-
―For the establishment of maternity/paternity, we require the bloodstains of the mother, disputed child and the alleged /suspected biological father.
For the identification of rapist in sexual assault cases , we require the forensic exhibits (viz., garments , vaginal swabs and slides) along with bloodstains of the suspect(s) and victims.
For the Identification of the deceased, we require the bloodstains of the nearest relatives ( viz., mother , father , brother , sister and children) along with the material objects of the deceased like teeth, post-mortem blood , muscle tissue, bone, hair with root and other material relevant to the cause.
The bloodstains can be made using lancet on FTA cards being sent by us , in the presence of Court Authorities. These stains should be air dried and sent to us .The procedure for collection and shipment of bloodstains on FTA cards are given in the annexure .
The forensic exhibits should be send as mentioned below. All the samples should be properly collected & sealed and sent to CDFD under certification along with specimen seal for comparison. The samples should reach CDFD between 10:00 am to 5:00 pm on any working day (Monday to Friday).‖
142. Detailed instructions in the said letter dated 21st of April, 2011 for
collection and shipment of blood on FTA Cards have also been given. On
the quantity of blood sample required, it is prescribed as follows :-
―Application of blood samples (fresh whole blood or with the anti coagulants :EDTA , sodium citrate , ACD or heparin )  Label the FTA card with appropriate sample identification . The date and time of collection , name of the concerned person whose bloodstains is collected , name of the Medical IA No.10394/2011 in CS(OS) 700/2008 75 Officer who collected the blood and his/her signature need to be mentioned in the FTA card.
 In one circle of the card , drop the blood (<125 ul per 1- inch circle, 0.75 ul per ¾-inch circle) onto the card in a concentric circular motion within the printed circle area and allow it to air dry. Avoid ―pudding‖ of the liquid sample, as it will overload the chemicals on the card. Also do not rub or smear the blood onto the card. In the second circle, please pot at 4-6 locations by placing one drop of blood at each location. (Please see the figure below).
xxxx‖
143. After participating without demur in the proceedings till here, the
defendant no. 1 now effected a change in counsel. On 10th May, 2011
before the Joint Registrar, Mr. Pramod Kumar Sharma, Advocate put in
appearance on behalf of defendant no. 1 and stated that he would file a
vakalatnama within a week. The Joint Registrar has noted in his order
that a report stood received from the CMO of the Dispensary of the
Government of NCT of Delhi in the High Court premises to the effect that
he would depute a doctor for collecting the blood sample on the scheduled
date and time. The plaintiff was directed to bring the requisite demand
draft towards the costs of the testing.
144. It is noteworthy that the defendant no.1 made no objections at all
to the collection of the blood samples on any of the aforesaid hearing. On
the contrary, he has participated without demur before the Joint Registrar
for a period of over five months during which the learned Joint Registrar
has obtained the prescribed procedure and the requisite kit from the
laboratory for taking of samples; their preservation after which he has
IA No.10394/2011 in CS(OS) 700/2008 76 scheduled the date and time for and also identified the doctor who would
take the sample.
145. It is at this stage that the defendant no. 1 has had an inexplicable
change of heart. On 1st June, 2011 when all parties, including Dr. Preeti
Rai from the dispensary of the Government of NCT of Delhi in the High
Court were present to take the samples before the Joint Registrar, the
following statement was made by counsel for the defendant no.1
―Learned counsel for defendant no.1 states that the defendant no. 1 has not come to the court today and he has also moved an application vide diary no.84071 on 30.05.2011 with the prayer that the defendant no.1 may not be pressurized to give his blood samples. He has further stated that the application was returned under objection and it shall be re-filed today.‖
This request was opposed by the plaintiff who had also brought the
requisite drafts payable towards the testing.
146. The present application was filed in this background. It came to be
listed before this court on 7th July, 2011 for the first time. An oral
submission was made on behalf of defendant no.1 in the proceedings on
11th July, 2011 to the effect "on account of his age and long public
service, he is not willing to give his blood sample for DNA testing".
Having regard to the directions made in the judgment dated 23rd
December, 2011, 7th February, 2011 and the order dated 18th March,
2011 passed by the Supreme Court of India, it was directed that the
defendant no.1 shall file a personal affidavit to the above effect.
IA No.10394/2011 in CS(OS) 700/2008 77 No such affidavit was brought as directed.
147. On 14th July, 2011, it was further noticed that despite the
admissions contained in the written statement, more than hundred
photographs featuring the defendant no. 1 filed by the plaintiff had been
simply denied by counsel for the defendant no. 1. Learned counsel for
the defendant no. 1 prayed for one last opportunity of one week to also
file an affidavit of the defendant no. 1 personally of admission/denial of
the documents filed by the plaintiff including each photograph specifically.
On request of the defendant no. 1, he was again given time for filing the
affidavits in terms of the order dated 11th July, 2011 as well as the
affidavit of admission/denial.
148. An adjournment was again requested on behalf of learned counsel
for the defendant no.1. Thereafter, only one affidavit dated 21st July,
2011 purporting to be in compliance with the directions made on 11th
July, 2011 was tendered in court and taken on record. Further time was
sought to place a personal affidavit of the defendant no.1 with regard to
admission/denial of the plaintiff‟s documents which was also granted.
149. The affidavit dated 21st July, 2011 with regard to refusal to give
blood sample is important for the purposes of the present application and
is reproduced in extenso:-
"1. That I am defendant no. 1 in the above
mentioned suit. Being well conversant with the facts and circumstances thereof, I am filing this affidavit in compliance of order dated 11.7.2011 passed by this IA No.10394/2011 in CS(OS) 700/2008 78 court.
2. I am acquainted with the directions passed by this court on 23.12.2010 directing me to give blood sample on a date and time designated by learned Jt. Registrar on the date fixed i.e. 8.2.2011; The order passed by Division Bench of this court dated 7.2.2011 referring to the case law in case a person directed refuses to undergo DNA test and finally rejection a stay prayer by Supreme Court in my Special Leave Petition (Civil) No. 5756/2011, however, notices were issued on aforesaid SLP which is still pending.
3. Being a Law Graduate and extensive personal experience in Vidhana Sabha, U.P., Lok Sabha, Rajya Sabha, vidhan Parishad, U.P. and Vidhan Sabha,
Uttarakhand in Legislative fields; I understand the concluding law in this respect and say that the
directions passed by this court on 23.12.2010 attained finality. The Supreme Court held as I understand that the person cannot be compelled to undergo DNA Test which is the final law as of now, of our land.
4. Besides I never suffered any allegation of my financial, moral, social and/or communal corruption in my public life for approximately 70 years. I achieve unblemished public career which justifies me to contest against the plaintiff who is bent upon to tarnish my public image by bringing false cause and even
unwarranted contempt petition so as to get undue
publicity in print as well as electronic media.
5. In order to preserve, protect and defend my personal dignity attained by my long cherished services to the Nation as well as Indian society, I being a senior citizen too, I am not willing to give my blood sample for DNA testing. Hence, I may not be compelled to do so.‖ (Emphasis supplied)
150. In view of the submission that counsel for the defendant no.1 was
not well, the case was adjourned to 28th July, 2011. Further
adjournment was sought to bring the affidavit of admission/denial of the
documents which was granted on 28th July, 2011.
151. In the present case, pending hearing of the present application, in IA No.10394/2011 in CS(OS) 700/2008 79 the hearing on 28th July, 2011 and 2nd August, 2011, the option was
given to the defendant no.1 to give his blood sample for preservation and
that testing thereon could be deferred till adjudication in the matter. It
was also put to the defendant no. 1 that if acceptable to the laboratory,
any bodily sample (other than the blood sample) which include, hair,
saliva, nails etc could be given by him. Such an option was given to the
defendant no.1 on the premise that the DNA analysis could be carried out
on samples obtained from such samples as well. Learned counsel for the
defendant no. 1 categorically stated that the defendant no.1 was not
willing to give any such sample.
152. The defendant no1 lays no challenge to the DNA profiling on
grounds of any technical deficiency or of its arbitrary or injudicious
application.
153. Before this court, the defendant no. 1 also does not dispute the
accredition of the Government laboratory or the procedure prescribed or
being followed for taking the sample or its testing in the application under
consideration or the above affidavit. He also does not challenge the
relevance or reliability of the DNA test.
154. The defendant no. 1 has not disputed the authority of the results of
the test nor suggests any other kind of evidence of the same reliability as
the DNA profiling which would have enable adjudication of the claim by
the plaintiff.
IA No.10394/2011 in CS(OS) 700/2008 80
155. Given the accuracy and value attached to the result of DNA profiling
as well as the stature of the parties, in case the paternity denial by the
defendant no. 1 was correct, he would be reasonably expected to
participate in the DNA profiling test to establish the truth. To establish
his defence, he would be expected to volunteer his blood sample to
enable the truth to be brought out and the controversy being put to an
end. Given the uncertainties of life, there could be serious issues with
regard to succession to the estate of the defendant no.1.
156. In para 77 of Sharda vs. Dharmpal, the court also referred to the
pronouncement reported at (1983) 714 F.2d 632 Zuniga vs. Pierce.
In Zuniga (supra), the court was concerned with the effect of the order
which resulted in piercing the confidentiality of a patient-psychotherapist
relationship. In this case, on the issue of reconciling competing interests
by balancing the interests involved, it was stated that "this is necessarily
so because the appropriate scope of the privilege like the privilege itself,
is determined by balancing the interest protected by shielding the
evidence sought with those advanced by disclosure". The tripartite test
states that a "legitimate need" must be present for the evidence to exist,
the relevancy and materiality to the issue before the court, and the
moving party must demonstrate that the information to which they are
seeking access "cannot be secured from any less intrusive source".
157. In Sharda vs. Dharmpal (supra) (para 82), the Supreme Court
IA No.10394/2011 in CS(OS) 700/2008 81 laid down caution to the court which is considering passing the order for a
person to provide a sample for DNA profiling and observed that the court
must ensure the rights of a party to the lis who may be otherwise found
to be incapable of protecting his interest, must be adequately protected;
the court shall not inquire a roving inquiry and it must have material
before it to enable it to exercise discretion. The applicant must have
established a strong prima facie case before passing an order for DNA
testing.
These concerns have been addressed by the court in the judgment
dated 23rd December, 2010.
158. The DNA profiling is a modern scientific method which has been
accepted in all jursidictions for the purposes of conclusively identifying
parents. Given the evidentiary value of a DNA profiling especially in a
paternity case, the refusal by the defendant no.1 to give his bodily sample
would really have the effect of frustrating the importance of the test.
159. The refusal by defendant no. 1 to comply with the court order has
to be tested against the above legal position.
160. It is in the pleadings of the parties that the wife of the defendant
no. 1 expired in 1993. Given the criminal law in India, even if any
criminality could be attached to the alleged relationship between the
defendants, the only person who could have made a complaint foisting
criminality in respect thereof upon the defendant no. 1 was his deceased
IA No.10394/2011 in CS(OS) 700/2008 82 wife. Given her demise, the defendant no.1 cannot even nurture an
apprehension that any criminal liability could be attached to his conduct
upon the result of the DNA test. No issue of self incrimination has been
rightly urged in these proceedings.
161. In the instant case, the defendant no. 1 has stated that he has no
off springs from his marriage.
162. The present case is also not concerned with any monetary claim in
the nature of maintenance upon the defendant no.1 other than a simple
prayer by the plaintiff of declaration of his parentage.
163. It is important to note that there is no plea of violation of bodily
integrity of the defendant no. 1 in furnishing the blood sample before this
court. The defendant no. 1 does not express any kind of apprehension
from the physical testing on account of the minor intrusion entailed. He
has placed no material on record to show that he has never undergone
blood testing.
164. The defendant no.1 before this court does not submit that there is
any medical necessity which prevents him from complying with a court
order to undergo parentage testing.
165. The defendant no.1 has not refused to give his blood sample on
account of any incapacity. The defendant no.1 has displayed no
nervousness nor any kind of aversion let alone aversion for giving the
sample. The defendant no.1 voices no religious prohibitions or physical or
IA No.10394/2011 in CS(OS) 700/2008 83 mental aversion or apprehension from the test.
166. It is the case of the plaintiff and defendant no. 2 that the plaintiff
was born outside of marriage. He was born from a relationship between
the defendant nos. 1 and 2. The defendant no. 2 has stated that though
she was married to Sh. B.P. Sharma from which marriage they were
blessed with one son Siddharth on 30th October, 1968; that the
defendant no. 2 and her ex-husband did not have marital relationship or
co-habitation since 1970; that the defendant no. 1 became close to the
defendant no. 2 from 1968 and they entered into an intimate relationship
in 1977 which resulted in the birth of Rohit Shekhar, the present plaintiff
on 15th February, 1979.
167. It is the case of the plaintiff‟s biological mother-defendant no.2 that
she was not living in a matrimonial relationship with her husband.
168. In his replication, the plaintiff has pointed out that the plaintiff and
the defendant no. 2 have jointly or separately have been photographed
with the defendant no.1 in his residences at Lucknow; Jantar Mantar
Road; Tilak Road, Delhi; the Chief Minister‟s residence, Dehradun; the
U.P. Niwas (now Uttarakhand Bhawan); in the Saket residence of Prof.
Sher Singh and the Defence Colony residence of the plaintiff and his
mother-defendant no.1 in close and familiar proximity to the exclusion of
the defendant no.1‟s wife.
169. The plaintiff sent a legal notice dated 7th November, 2007. The
IA No.10394/2011 in CS(OS) 700/2008 84 defendant no.1 has admitted receipt of the notice. The defendant no. 1
did not repudiate the facts in the legal notice. He admits in his written
statement that he has sent no reply to this notice.
170. The defendant no. 1‟s fear of unwarranted evasion of privacy are
expressed in broad, and speculative which are completely untenable
terms. Such concerns, if warranted, can be met by orders regulating the
sampling, publication, treatment, disposal of the DNA report etc. Despite
the available legal provision as well as liberty having been granted by the
Supreme Court in the order dated 10th May, 2010, no such request has
been made by the defendant no.1. The defendant no.1 therefore displays
no aversion on the privacy threshold to the proceedings in the present
case.
171. Apart from DNA profiling, alternative methods for establishing
paternity would include proof by adoption or voluntary paternity or a
court decree establishing paternity of the child by another man. None of
these alternative methods are available in the case in hand.
172. The defendant no.1 submits that he is a law graduate and has
extensive personal experience in the state assemblies as well as in
legislative fields. He submits that he is not willing to give his blood
sample for DNA testing in order to preserve, protect and defend his
personal dignity attained by long cherished service to the nation.
173. In the affidavit which he has filed, the defendant no.1 has admitted
IA No.10394/2011 in CS(OS) 700/2008 85 full knowledge of the proceedings before this court and all orders. He has
made a categorical assertion that he shall not undergo the ordered blood
test. The only reason put forth by him that he cannot be compelled to
undergo DNA test.
174. The defendant no. 1 has stated that he is aware of the requirement
of the test and the consequences of his refusal.
175. Before examining the above factual background, the nature of the
method for extracting the blood sample and the extent of its intrusion on
bodily autonomy may be considered. The blood test procedure is routine.
It is compulsory even in this country for those joining government or
military service. Blood donation is widely practiced. Blood testing is
undertaken routinely for identifying infections, health status etc of the
person being tested. A blood sample is drawn by medical experts
adopting a judicious method. The intrusion for a blood test is minimal.
176. In the judgment of the Massachusetts Supreme Court reported at
429, 366. 709 - NE2d 1085-(1999) Donald E. Landry v. Attorney
General, the court examined the reasonableness of the search and
seizure involving a blood test and concluded that the intrusion occasioned
by a blood test, is "not significant" involving little risk or pain. The court
further examined the "special needs doctrine beyond law enforcement" to
justify taking of blood from convicted persons for DNA identifications and
establishment of the DNA data bank as a deterrent to recidivism on the
IA No.10394/2011 in CS(OS) 700/2008 86 part of convicted persons.
177. On this aspect, while considering a challenge to the DNA warrants
under the Canadian Criminal Law in (2003) 2 SCR 678 : 2003 SCC 60
R v. S.A.B. in para 44, the Supreme Court of Canada had observed
thus:-
"With regards to privacy related to the person, the taking of bodily samples under a DNA warrant clearly interferes with bodily integrity. However, under a properly issued DNA warrant, the degree of offence to the physical integrity of the person is relatively modest (R. v. F.(S.) (2000), 141 C.C.C. (3d) 225 (Ont.C.A.), at para 27). A buccal swab is quick and not terribly intrusive. Blood samples are obtained by pricking the surface of the skin - a procedure that is, as conceded by the appellant (at para.32 of his factum), not particularly invasive in the physical sense. With the exception of pubic hair, the plucking of hairs should not be a particularly serious affront to privacy or dignity.‖
In para 59, the court again reiterated that the degree of intrusion,
both physical and informational is limited; the law provides for a search
and seizure of DNA materials that is reasonable; in light of the high
probative value of forensic DNA analysis, the interests of the state
override those of the individual; the DNA provisions contain procedural
safeguards that protect adequately the multiple interests of the suspected
offender.
178. In para 15 of State vs. Mogamat Phadil Orrie (supra), the High
Court of South Africa (Cape of Good Hope) observed that the taking of
blood samples had become so widespread a practice in modern life that it
was an experience which virtually every person in a modern society IA No.10394/2011 in CS(OS) 700/2008 87 experiences on one or more occasions in their life. It has also a long been
a vital tool in the administration of the criminal justice system. So far as
compulsion in testing was concerned, in para 14 in State vs. M.P. Orrie
(supra), the court held as follows :-
"14. In S v Huma & Another 1995 (2) SACR 411 (W) it was held that the taking of finger-prints was neither inhuman nor degrading and does not constitute a contravention of a person's dignity as protected and enshrined in the then interim constitution. An involuntary blood test undoubtedly entails an invasion of the subject's right to privacy. Clearly however, the right to privacy is not inviolable and in appropriate circumstances must yield to other considerations of public policy. (See Seetal v. Pravitha and Another N.O. 1983 (3) SA 827 (D). Building on Seetal's case Kotze J held in M v R 1989 (1) SA 416 (O) that the Supreme Court possesses the power to order both a minor and an adult to submit to a blood test. See also the case of D v K 1997 (2) BCLR 209 (N) where Moodley AJ stated at 2201 :
‗[t]he taking of a blood sample is a relatively
painless procedure and can hardly be described as a cruel, inhuman or degrading treatment or
punishment to the person submitting thereto.‖
179. An argument premised on intrusiveness of the order directing blood
sample which was premised on the definition of "assault" in Section 351
was rejected by the Rajasthan High Court in 1971 Cri.L.J. 1405 Mahipal
Maderna & Anr. Vs. State of Rajasthan observing thus :-
" xxx
17. Section 9 of the Evidence Act provides that facts which establish the identity of any person whose identity is relevant, are relevant. It was therefore the duty of the Investigating Officer, under the law, to collect that evidence, for Section 4 (1), Criminal P.C. defines "investigation" to include all the proceedings under the Code for the collection of evidence. It will follow that in the absence of any legal provision to the contrary, he should be allowed to use the reasonable means IA No.10394/2011 in CS(OS) 700/2008 88 for obtaining a few specimen of the hair of the accused for the purpose of establishing the identity of those who took part in the crime. This may in fact operate as a strong protection for the innocent persons, and is quite unexceptionable. In this view of the matter, any argument based on the definition of "assault" in Section 351, IPC, to which my attention has been invited by Mr. Singhvi, is quite fanciful for there can be no question of the use of "criminal force" in such a case as this, within the meaning of Section 350, IPC,.....
.......In this view of the matter, any argument based on the definition of "assault" in Section 351, IPC, to which my attention has been invited by Mr. Singhvi, is quite fanciful for there can be no question of the use of "criminal force" in such a case as this, within the meaning of Section 350, , IPC.....‖ ―Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual's right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is; far outweighed by the value of its deterrent effect; due to the public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of confusion of conflicting contentions.‖
(Underlining supplied)
This judgment has also been referred to in para 174 of (2010) 7
SCC 263 Selvi vs. State of Karnataka (at page 354).
180. The minimal intrusion involved in a blood sample; the miniscule
pain involved ; its widespread use in medical testing and otherwise and
the addressal of any dignity concerns by appropriate directions that the
same to be taken by a health care expert, would render the refusal by
defendant no.1 to submit to testing suspect, unless explained by good
reasons.
181. It also requires to be borne in mind that while considering IA
No.4720/2008 and the present application only the concerns of the IA No.10394/2011 in CS(OS) 700/2008 89 defendant no.1 are being addressed. No heed is being paid to the trauma
which the plaintiff is claimed to have suffering and the damage to his
reputation and psyche which is urged to be incalculable. With regard to
the suffering of the plaintiff on the denial by the defendant no.1, the
defendant no.2-the biological mother of the plaintiff has stated as
follows:-
―4. That the contents of paragraph 4 of the plaint are correct and need no reply. It is further submitted that the defendant no.2 as a mother has seen her very young and bright upcoming son with immense potential getting demoralised, depressed, humiliated and cornered by his own father, the defendant no.1. As a result of defendant no.1's cruel and inhuman conduct of having the plaintiff rebuked and physically manhandled in 2001, the plaintiff became very tense. Since then, defendant no.2 had to constantly take the plaintiff to therapists since he developed acute insomnia, which severally affected his academic career and other pursuits. Constant depression, acute insomnia and demoralisation faced by the plaintiff for almost a decade led to a grave life threatening situation for the plaintiff wherein the defendant no.2 managed to save his life by sheer luck as the defendant no.2 made sure that the plaintiff on the night of September 12, 2007 was kept on a life support at Mool Chand Hospital, New Delhi and was later transferred to Max Hospital, Saket in a special ambulance arranged by the defendant no.2. The defendant no. 2 then had to see her young 28 year old son, the plaintiff grappling with life and death situation for a week in ICU Max, Saket, New Delhi.‖
If the case set up by the plaintiff is correct, the refusal to comply
with the court order by the defendant no1 may irreversibly and
irreparably damage the plaintiff.
182. The defendant no.1 has been ordered to undergo a blood test after
considering his claimed rights. He therefore has „no right‟, or „privilege‟ to IA No.10394/2011 in CS(OS) 700/2008 90 refuse.
183. The defendant no. 1 is obliged to comply with a court order to
undergo parentage testing.
184. The conscious and emphatic refusal clearly suggests that the
defendant no.1 does not wish to run the risk of providing the plaintiff with
the evidence that would establish his case and is malafide. The refusal of
the respondent displays no good reason but bad faith.
185. The defendant no.1 has participated in the extensive proceedings
undertaken by the Joint Registrar for calling the information from the
laboratory without any protest or demur. He has in fact backtracked only
on the date when blood sample was to be actually drawn. The attitude of
the defendant no.1 as manifested in the present application and the
affidavit dated 21st July, 2011 is certainly not a reasonable attitude. I
therefore find that there is no justification or valid reason at all for the
defendant no.1 not to provide the sample directed by this court to submit
to the DNA testing.
186. It is held that the refusal by the defendant no. 1 constitutes wilful
and wrongful refusal to comply with a valid court order.
Consequence of the refusal
187. In Goutam Kundu (supra), the Supreme Court has laid down that
the "rebuttable presumption of law that a child born during the lawful
wedlock is legitimate and that access occurred between the
IA No.10394/2011 in CS(OS) 700/2008 91 parents.........can only be displaced by a strong preponderance of evidence,
and not by a mere balance of probabilities........". "This rule of law based
on the dictates of justice has always made the courts incline towards
upholding the legitimacy of a child unless the facts are so compulsive and
clinching as to necessarily warrant a finding that the child could not at all
have been begotten to the father.........". The Supreme Court observed
that the "courts have always desisted from lightly or hastily rendering a
verdict and that too, on the basis of slender materials ..........."
188. The presumption of paternity may be rebutted only by clear and
convincing evidence. The "clear and convincing" evidence standard
requires a greater degree of proof than the "preponderance" standards
but lesser that proof "beyond a reasonable doubt" as required in criminal
proceedings. In the judgment of the United States District Court in the
judgment reported at 768 F.Supp. 577 Karen L Tipps v. Metropolitan
Life Insurance Company v. Michael Steven Kiser, the court placed
reliance on the observations in Sanders v. Harder, 148 Tex.593, 227
S.W.2d 206 (1950) to the effect that "the rule requiring that facts be
established by clear and convincing evidence in practical effect, is, but an
admonition to the judge to exercise great caution in weighing the
evidence."
189. An examination of judicial precedents and writings in the issue
suggest that, hypothetically, in order to conclude whether „X‟ was the
IA No.10394/2011 in CS(OS) 700/2008 92 father of „Y‟ born to „Z‟ (the mother), the evidence on the following facts
is essential:-
(i) Whether „Y‟ was full term child and calculation of the proximate
date/period of Y‟s conception by mother „Z‟.
(ii) Evidence that the mother „Z‟ had an unprotected and exclusive
sexual relationship only with the alleged father „X‟ at the time
encompassing the possible period of conception
(iii) The above evidence may be supported by circumstantial evidence
in the nature of photographs, accessibility declarations furnished by „X‟
and „Z‟
regarding „Y‟ etc.
If there was clear and convincing evidence to the above effect, it
could be conclusively held that the putative father was the father of the
child.
190. Section 9 of the Indian Evidence Act, 1872 states that facts
necessary to establish the identity of anything or person whose identity is
relevant, are relevant facts, in so far as they are necessary for that
purpose.
In this background, the result of the DNA profiling is a relevant fact
to establish to parentage and paternity so far as plaintiff is concerned.
191. Under section 114 of the Indian Evidence Act, the court may
presume the existence of any fact which it thinks likely to have happened,
IA No.10394/2011 in CS(OS) 700/2008 93 regard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of
the case. Illustration (g) in section 114 states that the court may
presume that evidence which could be and is not produced would, if
produced, be unfavourable to the person who withholds it.
The unreasonable refusal by the defendant no.1 to give the blood
sample would have to be tested against this statutory presumption.
192. Section 4 of the Indian Evidence Act, 1872 stipulates that where the
Act provides that the court may presume a fact, it may either record such
fact as proved unless and until it is disproved and may call for proof of it.
Thus while evaluating the evidence which may be produced, the
court may treat such unreasonable refusal to provide the material
evidence without a good cause as or capable of, amounting to
corroboration of any evidence which has been produced against the
person in relation to which the refusal is material.
As a consequence, the presumption of paternity would follow upon a
refusal by an adult person to give the blood sample for testing. The
burden of proving that he is not the father of the child then has to fall on
the person refusing to give the specimen. Such a presumption can be
rebutted only by clear and convincing evidence.
193. It would be possible for adverse inference to be drawn from a
refusal, regardless of whether the refusal occurred before or after the
IA No.10394/2011 in CS(OS) 700/2008 94 making of the direction.
194. As a result of his refusal the defendant no.1 has implicitly agreed to
be bound with the statutorily created presumption under section 114(g)
of the Indian Evidence Act.
195. The refusal by the defendant to undergo the test is unreasonable
and has to be taken on record.
196. The plaintiff and defendant no.2 would be required to give evidence,
oral and/or documentary in support of the averments made in the
pleadings.
Such evidence would be evaluated by the court and an appropriate
inference with regard to the unreasonable refusal by the defendant no. 1
to submit to DNA profiling would be required to be drawn at that stage.
Subject to the availability of the other evidence on the material aspects
noticed above brought by the parties on record, the negative presumption
that the results of the DNA test on his blood sample would have been
unfavourable to the defendant no.1 would follow.
197. The plaintiff has filed CCP No.57/2011 also seeking initiation of
proceedings under the Contempt of Court Act against the defendant no.1
for refusal to comply with the court direction which is pending for
consideration and would be proceeded with in accordance with law when
listed.
Exercise of jurisdictions by a civil court to direct a medical examination of a person
IA No.10394/2011 in CS(OS) 700/2008 95
198. Before parting with the suit, it is essential to consider an important
fact which is highlighted by the present case. The foregoing discussion
shows that the issue of medical examination has repeatedly arisen before
the civil court.
199. The instant suit raises a paternity assertion. However biological
parentage may also be a relevant issue in cases and circumstances
involving displacement including disasters, adoption as well as in children
born by IVF procedure or surrogacy. Here maternity determinations may
also be necessary. Visitation rights with children and custody claims
claimed by the biological parent not having physical custody and control
over the child raise such issues. The same may arise in a paternity action
or be raised in an inheritance issue. Given the accuracy and value
attached to DNA profiling, this test may either confirm an identity or
shatter it. In matrimonial and other cases, there are several grounds on
which a conclusion can be reached by the court only upon a medical
examination of the person concerned. It may be necessary for a court to
assess a person‟s health and capacity for the purposes of assessing the
capability to prosecute claim; or defending a case or appearing as a
witness in a case, all of which would entail a medical examination.
200. In this regard reference can be made to the legislation on the
subject from other jurisdictions, some of which are as follows:-
IA No.10394/2011 in CS(OS) 700/2008 96 (i) The Family Law Act, 1975 - Sections 69W and 69X in Australia
(ii) The Uniform Child Status Act, 1992 - Sections 7 and 8 in Canada
Section 7(1) provides that on the application of a party to a proceeding the court may, give the party leave to obtain blood tests of person named by the court and to submit the results in evidence.
It is noteworthy that under Section 7(3), on refusal of the person named by the court to submit to a blood test the court may draw any inference it considers appropriate.
(iii) The Children‟s Act, 2005 - Section 37 in South Africa
Section 37 of the Act states that if a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.
It is important to note that under Section 41(1) of this Statute, a
child born as a result of artificial fertilisation or surrogacy or the guardian
of:
(a) any medical information concerning that child‟s genetic parents; and
(b) any other information concerning that child‟s genetic parents but not before the child reaches the age of 18 years.
Sub-section (2) of Section 41 mandates that information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete was or gametes were used for such artificial fertilisation or the identity of the surrogate mother.
(iv) The Family Law Reform Act, 1969 in U.K. Part III especially Sections 20,22 and 23 deal with the use of blood tests. IA No.10394/2011 in CS(OS) 700/2008 97 Under Section 23(1), if a court gives a direction under Section 20 and any person fails to take any step required of him for giving effect to the direction the court may draw such inferences from that fact as appear proper in the circumstances.
Section 23(3) stipulates that if the person fails to consent to the taking of blood samples from himself, he shall be deemed for the purposes of this section to have failed to take a step required of him for the purpose of giving effect to the direction.
(v) The Family Proceeding Act, 1980 - Section54 in New Zealand
Under Section 54(1), the Court may, of its own motion or on the application of a party to the proceedings, recommend that parentage tests be carried out on the child and any person who may be a natural parent of the child and that a report of the results be compiled, by a person who is qualified to compile such a report, and submitted to the Court.
Under Section 57, in any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended under section 54(1) of this Act that parentage tests should be carried out on a person, evidence may be given to the Court as to the refusal of that person to consent (or, where the person is under 16 years of age, as to the refusal to consent to such parentage tests of the person who is competent to do so on that person's behalf).
The Sub-section (2) of Section 57 provides that Subject to the right of the person who refuses to consent to the parentage tests to explain the reasons for that person's refusal, and to cross-examine witnesses and call evidence, the Court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.
(vi) The Uniform Parentage Act, 2000 (Amended in 2002) - Article 5 in USA
(vii) Section 501 provides the scope of the Article which governs genetic testing of an individual to determine parentage, whether the individual:
IA No.10394/2011 in CS(OS) 700/2008 98 (i) voluntarily submits to testing; or
(ii) is tested pursuant to an order of the court or a support- enforcement agency.
Section 508 provides for genetic testing of collaterals when specimens are not available. Such order requires a finding that a need for genetic testing outweighs the legitimate interests of the individual sought to be tested.
Section 509 is concerned with the genetic testing of a deceased individual for good cause shown.
Section 622 provides the following consequences of declining genetic testing:-
(a) An order for genetic testing is enforceable by contempt.
(b) If an individual whose paternity is being determined declines to submit to genetic testing ordered by the court, the court for that reason may adjudicate parentage contrary to the position of that individual.
(c) Genetic testing of the mother of a child is not a condition precedent to testing the child and a man whose paternity is being determined. If the mother is unavailable or declines to submit to genetic testing, the court may order the testing of the child and every man whose paternity is being adjudicated.
Testing of third and collateral parties
201. It is important to note that in the judicial precedents noticed in the
judgment dated 23rd December, 2010 and herein, there does not appear
to have been any case by a child (who had attained adulthood) seeking a
declaration that the defendant was his biological father. The
recommendations by the Law Commission (185th Report) in the proposed
amendment to Section 112 of the Evidence Act also suggest that the main
issue would be between the husband and wife. The present case IA No.10394/2011 in CS(OS) 700/2008 99 underlines the need for consideration beyond these concerns which must
be anticipated and imperatively addressed.
202. Legal discussion has also arisen about the power of the court to
direct posting of collateral parties and implementing an hierarchy of
sources for paternity testing. This is necessary especially where the
primary concern i.e. the putative father may not be available or cannot
for any reason be tested (for instance, in a case of demise and non-
availability of the sample).
In the judgment reported at 583 A.2d 782 in the matter of
Estate of Peter Rogers, Sr.Deceased, the Superior Court of New
Jersey (Appellate Division) observed that though the Parentage Act
subjected only parties to a court order compelling blood test or genetic
testing, the court had an inherent power to require non-party to give
evidence in form of testimony in quest for truth, it also has the inherent
power to require a non-party when they are needed to adjudicate a
genuine issue before it to give evidence in form of blood sample in quest
for truth.
203. In Sudwischer, 589 So.2d at 475, the Supreme Court of
Louisiana employed the civil discovery rules which provide for discovery of
any non- privileged matter that is relevant to the subject matter of the
case. The court ordered the legitimate daughter of a decedent, who was
not a party to the case, to submit to a blood test for DNA testing.
IA No.10394/2011 in CS(OS) 700/2008 100
204. The putative child of decedent was held entitled to compel DNA
blood testing of decedent‟s child and mother, notwithstanding that they
were non-parties, in order to determine whether decedent was his
biological father; although the mother was married to another man at
time of child‟s birth, blood test had excluded husband as biological father,
and putative child could share equally in decedent‟s estate if decedent
was his father. (Ref: M.A.v. Estate of AC (N.J. Super. Ch. 1993, 643
A.2d 1047 274 N.J. Super 245)
205. So far as the power of the court to direct medical testing of non-
parties is concerned, the same has been ruled upon by the court in the
judgment dated 23rd December, 2010 while considering the binding
judicial precedents of the Supreme Court and the recommendations of the
Law Commission of India in the following terms :-
"36. While the Court here advised that such tests should not be conducted in a routine manner, it did not ban their conduct, upon the third party, altogether. It held that ordering a test upon a person to determine biological relationships between him and the plaintiff would not attract the sanction of Article 21 of the Constitution of India‖
Posthumous Testing
206. Jurisprudence is also available even about posthumous testing
which issue could arise before the court given the concerns noticed above
also.
207. An action to determine the fact of paternity was held to be
maintainable after the death of the father in Manuel v. Spector, 712 IA No.10394/2011 in CS(OS) 700/2008 101 S.W.2d 219, 222 (Tex.App.-San Antonio 1986).
208. In the judgment reported at 2008 ME 79, 946 A.2d 389 titled In
re: Kingsbury, the court held that a blood relative of the decedent who
was also a party in action could be directed to submit to DNA testing,
failing which exhumation of the body would be directed. The court held
that the compelling interests of the illegitimate child far outweighed the
„temporary moral distress‟ which would result from the exhumation of the
decedents body which was essential in the light of the intestacy law policy
goal of determining the rightful heirs of the decedents and that the law
should favour posthumous paternity determination over temporary
emotional distress as well as any public interest in preserving legal
certainty.
209. Paternity testing issues may also arise in adoption and sperm donor
cases. In cases involving adoption or artificially conceived children, there
would be a living biological father. Such father would have a competing
interest which may include the desire to remain anonymous to the child
so as to be free from obligations. In the context of such cases, the
father‟s interest in anonymity may outweigh an adopted or artificially
conceived child‟s right to know while the father is living.
210. Similar considerations may be advocated by a child born outside of
marriage in a posthumous paternity determination case. An issue of
paternity may arise in succession matters. A half-sister/half-brother; a
IA No.10394/2011 in CS(OS) 700/2008 102 grandparent and grand child may also have legitimate reasons to find out
their biological inheritance.
211. It may be noted that with regard to posthumous testing, the family
or relatives of a decedent may evince emotional and religious interest in
keeping his body undisturbed. These interests have to be examined
especially in the light of the social, biological and financial interest of
recognised heirs of the decedent in denying a putative illegitimate child,
of accessing any proof of paternity which would include a sample of their
DNA. Upon testing of such sample, the putative child can certainly gain a
substantial share in the estate.
Several authors have urged that the child‟s access to proof of
paternity are far outweighed by the said financial interest of the
recognised heirs of an intestate decedent.
212. It is important to note that the issue of anonymity or autonomy has
not weighed with the court in the case of posthumous paternity testing
cases.
213. It may be noted that the State of Maine in United States of America
has statutory provisions which have a bearing on the issue.
214. No such legislation exists in India. Upon such issue arising the
court would be required to consider the same under the broad general
principles in statutory provisions and the jurisdiction to make orders may
be sourced to the inherent power of the court to do justice.
IA No.10394/2011 in CS(OS) 700/2008 103
215. The above discussion would show that no specific legislation on
medical examinations exists in India on these issues in civil jurisidction.
Different aspects on these issues have, however, been considered in the
binding judicial precedents noted above. It is noteworthy that no
precedent involving a civil action by an adult seeking declaration of his
parentage in civil court is available.
216. In this background, it would be appropriate to collate the principles
laid down by the Supreme Court as well as the High Courts in the several
judicial pronouncements noticed hereinabove which are to the following
effect:-
(i) A matrimonial court and the civil court have the implicit and
inherent power to order a person to submit himself for medical
examination (Re: Sharda)
(ii) The court under section 75(e) of the CPC and order XXVI, rule 10A
has the requisite power to issue a direction to hold a scientific, technical
or expert investigation. (Re : Sharda; Selvi)
(iii) Passing of an order for medical examination would not be in
violation of the right to personal liberty under Article 21 of the Indian
Constitution (Re : Goutam Kundu)
(iv) The direction for the medical examination can be issued suo motto
by the court or upon an application filed by a party (Re : Sharda) The
principles of natural justice would require to be complied with.
IA No.10394/2011 in CS(OS) 700/2008 104 (v) The court would examine that the proportionality of the legitimate
aims being pursued are not arbitrary, discriminatory or pointless or which
may adversely impact the best interest of the child (for instance,
bastradise a child) and that they justify the restrictions on privacy and
personal autonomy concerns of the person directed to be subjected to
medical examination
(vi) The court should not exercise such power as matter of course or in
order to have a roving inquiry (Re : Goutam Kundu) Such power would
be exercised if the applicant has a strong prima facie case and there is
sufficient material before the court (Re: Sharda) The court would
consider the age; physical and mental health of the persons involved.
(vii) No one can be compelled to give a sample of blood for analysis (Re:
Goutam Kundu). If despite the order of the court, the respondent
refuses to submit himself to medical examination, the court will be
entitled take the refusal on record and to draw an adverse inference
against him (Re: Sharda)
(viii) A direction to a person to undergo a medical examination could be
made to enable the court to leading the truth; in matrimonial cases also
for removal of misunderstanding, bringing a party to terms; for judging
competency of a person to be a witness; whether a person/party needs
treatment or protection; the capacity of a person/party to protect his
interest or defence in litigation; whether the person needs legal aid (Re;
IA No.10394/2011 in CS(OS) 700/2008 105 Sharda)
(ix) In a case involving a paternity claim/denial issue, 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‟ (Re: Goutam Kundu ; Rohit
Shekhar (Bhat, J - DOJ 23rd December, 2010)
(x) A "paternity" action by the son or daughter of one, claiming the
defendant to be his or her biological father, filed in a civil court by an
adult plaintiff, 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 the threshold application of
Section 112; the Court has to weigh all pros and cons, and, on being
satisfied about existence of "eminent need" make appropriate orders;
(Re: Goutam Kundu; Bhabhani Jena; rohit Shekhar (Bhat, J- DOJ
23rd December, 2010)
(xi) In a case involving a parentage issue, the child‟s best interest shall
dominate the consideration by the court. The court may refrain from
ordering a test if it considers that this may not be in the child‟s best
IA No.10394/2011 in CS(OS) 700/2008 106 interest." The court would also consider the reasons for refusal of the
examination of the child by the party having custody and make
appropriate orders based on the best interest principle.
(xii) which could include an external and internal examination; a physical
and psychological examination of the person. The medical examination
may be directed to include and examination of blood, semen, sputum,
sweat, hair samples, and finger nails by the use of modern scientific
techniques in binding DNA profiling.
(xiii) The medical examination/expert investigation must be by a qualified
doctor; qualified psychiatrist/expert in the field (Re: Sharda)
(xiv) The medical examination including the DNA profiling would be
ordered by the court if relevant to the specific issue; necessary and
relevant to ensure legitimacy of administration of justice ; where scientific
tests are necessary for discovery, doing justice to all parties; and, where
the relevant evidence cannot be obtained by any other non-intrusive
methods.
(xv) The court has the jurisdiction to order DNA testing of blood
relatives of a person alleged to be the parent, even though they are not
parties to the litigation.
(xvi) The results of the scientific DNA testing shall be produced before
the court in sealed cover and kept in a sealed cover.
(xvii) The court would make appropriate direct preservation of the
IA No.10394/2011 in CS(OS) 700/2008 107 samples and also the confidentiality to be attached to the same.
(xviii) The testing must be undertaken by an accredited laboratory with
established and accepted credentials and expertise which meets the
publicly sanctioned standards.
(xix) Appropriate directions covering the technical aspects with regard to
drawing, preservation, transportation, and integrity of the sample
specimen must be made so that integrity and identity of the
sample/specimen is guaranteed.
(xx) The court could direct that the report of the DNA test should contain
the following :-
(i) qualifications of the person making the report
(ii) details of identity of the person tested
(iii) circumstances in which and description of sample was taken from
each person to whom the report relates and the manner in which the
person was separately identified from each person to whom the test
relates
(iv) the nature/system in which the test undertaken
(v) the results of the test
(vi) whether the results show that a person is not a natural parent of
the child
(vii) whether the blood test carried out on a person does not show that
the person is not a natural parent of the child, the report may contain an
IA No.10394/2011 in CS(OS) 700/2008 108 evaluation of the significance of the results of the test in determining
whether that person is a natural parent of the child.
These guidelines would guide consideration of application for
medical examination before a civil court and matrimonial court.
Result
In view of the above discussion, it is held as follows :-
(i) That the defendant no.1 cannot be physically compelled or be
physically confined for submitting a blood sample for DNA profiling to
implement the judgment dated 23rd December, 2010;
(ii) It is further held that the refusal by the defendant no.1 to submit
the blood sample is wilful, malafide, unreasonable and unjustified. Such
refusal is taken on record.
(iii) The court would construe the weight to be attached to and the
impact of this refusal by the defendant no.1 while evaluating the evidence
produced by the parties, which then may be treated as corroborative
evidence leading to the presumption that the result of the DNA profiling of
the defendant no.1‟s blood sample would have supported the plaintiff‟s
claim.
This application is disposed of in the above terms.
GITA MITTAL, J
September 23, 2011
kr
IA No.10394/2011 in CS(OS) 700/2008 109

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