Whether in a declaratory suit where ownership over co-parcenary property is claimed,the plaintiff, against his wishes can be subjected to DNA test ?

Whether in a declaratory suit where ownership over coparcenary property is claimed, the plaintiff, against his wishes and closing his evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 , can be subjected to the DNA test ?

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Ashok Kumar Vs Raj Gupta & Ors.

Civil Appeal 6153–2021
Hon’ble Judges : Hon’ble Mr. Justice R. Subhash Reddy & Hon’ble Mr.Justice Hrishikesh Roy
Decided on : 01–10–2021
2021–JX(SC)–0–594

Can refusal to undergo DNA test, be considered as adverse ?

HELD :

 Yes, In circumstances where other evidence is available to prove or
dispute the relationship, the court should ordinarily refrain from
ordering blood tests. This is because such tests impinge upon the
right of privacy of an individual and could also have major societal
repercussions. Indian law leans towards legitimacy and frowns upon
bastardy.

 The presumptionPresumption An inference of the truth or falsehood of a proposition or fact that stands until rebutted by evidence to the contrary. in law of legitimacy of a child cannot be lightly
repelled. It was also the view of the Court that normal rule of
evidence is that the burden is on the party that asserts the positive.
But in instances where that are challenged, the burden is shifted to
the party, that pleads the negative.

 Keeping in mind the issue of burden of proof, it would be safe to
conclude that in a case like the present, the Court’s decision should
be rendered only after balancing the interests of the parties, i.e, the
quest for truth, and the social and cultural implications involved
therein. The possibility of stigmatizing a person as a bastard, the
ignominy that attaches to an adult who, in the mature years of his life
is shown to be not the biological son of his parents may not only be a
heavy cross to bear but would also intrude upon his right of privacy.
In such kind of litigation where the interest will have to be balanced
and the test of eminent need is not satisfied. Our considered opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion.
is that the protection of the right to privacy of the Plaintiff should get
precedence.

The respondent cannot compel the plaintiff to adduce further evidence in support of the defendant’s case. In any case, it is the burden on a litigating party to prove his case adducing evidence in
support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.

Having answered these questions, additional issue to be resolved is whether refusal to undergo DNA Testing amounts to ‘other evidence’ or in other words, can an adverse inference be drawn in such situation. In Sharda vs. Dharmpal [6 2003(4) SCC 493] a three judges bench in the opinion written by Justice S.B. Sinha rightly observed in paragraph 79 that ”if despite an order passed by the court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference” can be made out against the person within the ambit of Section 114 of the Evidence Act.

The plaintiff here has adduced his documentary evidence and is disinclined to produce further evidence. He is conscious of the adverse consequences of his refusal but is standing firm in refusing to undergo the DNA Test. His suit eventually will be decided on the nature and quality of the evidence adduced. The issue of drawing adverse inference may also arise based on the refusal. The Court is to weigh both side’s evidence with all attendant circumstances and then reach a verdict in the Suit and this is not the kind of case where a DNA test of the plaintiff is without exception.