Civil Appeal No. 6153 of 2021
Ashok Kumar Vs Raj Gupta & Ors.
DATE OF JUDGEMENT:
October 1, 2021
Petitioner – Ashok Kumar
Respondents – Raj Gupta
Justice R. Subash Reddy
Justice Hrishikesh Roy
This is a declaratory suit wherein parental property distributed among the heirs and claiming one of the heirs as not the son of their parents the defendants filed a plea for DNA test to prove the same amounting as their evidence.
SECTION 114 OF INDIAN EVIDENCE ACT
This section states that the court presumes the existence of few facts, as if they have happened as, it was likely to have happened.
- Whether in a declaratory suit it is necessary to be subjected to DNA test over a coparcenary property?
- Whether a party can be forced to give or provide for DNA test without his consent?
- The petitioner here claims to be the son of late Mr. & Mrs. Trilok Chand Gupta, and is the coparcener of the parental property.
- The defendants here being the daughters of the above mentioned claimed that the petitioner wasn’t the son or their brother and does not have any entitlement towards the respective parental property.
- The petitioner put forth all of his evidences claiming that he is the son of Mr. & Mrs. Trilok Gupta.
- The defendants still to prove that the petitioner doesn’t have any entitlement over the property they applied for seeking permission to conduct DNA test on the petitioner.
- The petitioner denying the same has filed for the above petition.
ARGUMENTS ADVANCED BY THE PETITIONER
- The petitioner argued that have been adequate evidences submitted by him to prove the legitimacy, he further submitted that the mother and his sisters (the defendants) have sworn to the affidavits too with respect to a specified property mentioning the petitioner to be the son.
- The plaintiff claimed also that the act being done by the defendants is just to delay the process of law and since the evidences submitted are adequate, he opposed the same application of seeking DNA test.
ARGUMENTS ADVANCED BY THE DEFENDANT
- The defendants claimed that they have an exclusive entitlement over the property as there was a will executed by Sonal Devi their mother.
- The defendants held that since it is a vital test in determining the legitimacy, the plaintiff claiming to be the son should not hesitate in providing for the DNA test.
- The court relied upon the judgement made in Banarsi Dass vs Teeku Dutta, wherein it held that DNA test is not to be held as mandatory in all the cases, it said that it shall be deserved only in few cases.
- It also relied upon the judgement made in Bhabani Prasad Jena vs Convenor Secretary Orissa State Commission for Women & Anr wherein it was held that only if a case in prima facie demands for a DNA test it shall be awarded or granted.
- Considering the both above mentioned the judge opined that when there exist other adequate evidences that suffice to prove such a matter in question then there shall be no necessity of ordering for a DNA test and invading the right to privacy of an individual.
- Further the question as to whether any person can be compelled to provide for DNA test is decided basing upon the judgement passed in K.S Puttaswamy vs Union of India, it was of the opinion that with DNA test there is an encroachment upon the right to privacy of an individual and when any such order is passed it shall not be arbitrary and it cannot mandate when there are adequate evidences to prove.
- The court thus held that the burden of proof lies on the party that litigates and it cannot compel the other party for the evidence it requires. With all the above judgements mentioned it opined that any person cannot be compelled to go ahead with DNA test without his consent, also it is to be conducted only in cases where they lack evidences and it is prima facie a necessity to conduct the same
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