Rajiv Narain Raina, J.@mdashThe challenge in this petition is to the order dated 17th January, 2013 passed by the Additional Civil Judge (Senior Division), Hisar directing plaintiff Nos. 1 and 2 and defendant No. 1 to appear before the Forensic Science Laboratory, Maduban, Kamal to give blood sample for DNA profiling test at the expense of the plaintiffs. The parties were directed to appear on 20th February, 2013 for drawing blood sample. The dispute in the suit is with respect to rights and shares in the suit property. The suit instituted by the petitioner is for declaration of ownership and possession to the extent indicated in the head note to the plaint. The family pedigree table is found at page 25 of the paper book.
2. Plaintiff No. 1 Shanti Devi asserts that she and her late sister Kesho were born from the marriage of Birsala @ Risala and Nikia Devi. After the death of Birsala @ Risala their mother Nikia Devi married Vijay Singh @ Baje Singh brother of Birsala. Indisputably, from the second marriage, Sube Singh/defendant No. 1 and late Harish Chander were born. Therefore, Shanti Devi, late Kesho, Sube Singh and late Harish Chander were born from the same womb of Nikia Devi. It is pleaded that the contesting parties are step brothers and sisters.
3. Resisting the suit Sube Singh has refuted that Nikia Devi is the common mother alleging that she never married Birsala @ Risala and plaintiff No. 1 Shanti Devi and Kesho (deceased) were not born from the womb of Nikia Devi and there is no commonality of blood between them. When plea of denial was entered by the defendant in the suit, plaintiff No. 1 moved an application praying that DNA profile test be conducted between the parties for removal of doubt as to maternity. The application was seriously contested as being not maintainable; there is no provision in the CPC to order such test against defendant''s wishes and for these reasons dismissal of the application was prayed for.
4. The plaintiff submitted that truth could easily be ascertained by comparison of the genetic code of the parties to establish relationship by common dissent through maternal line from a common ancestor. This was resisted by Sube Singh defendant No. 1 arguing that DNA test is not a substitute for evidence. It is complained that the plaintiff wants to prove her case without leading any evidence by a simple scientific test.
5. The trial Judge has accepted the prayer for the conduct of a DNA profile test by his order dated 17th January, 2013. This petition was filed on 26th February, 2013. When the matter came up on 27th February, 2013 none appeared for the petitioner and the matter was posted on 12th March, 2013 on which date notice of motion was issued returnable on 14th May, 2013. Thereafter, time was spent in serving the respondents. Since there was no stay of further proceedings by this Court, the trial Judge has by order dated 18th February, 2014 taken recourse to enforce his order by granting police help and use of force to carry out the DNA profiling test.
6. The blood matching has been ordered by the trial judge to be done between plaintiff Nos. 1 and 2 and defendant No. 1 (Sube Singh) by the Forensic Science Laboratory, Madhuban, Karnal. CM No. 3865-CII of 2014 has been preferred praying for placing on record the order dated 18th February, 2014 while CM No. 3864-CII of 2014 has been filed with a prayer for staying the operation of the order dated 18th February, 2014 during the pendency of the present revision petition. The applications are taken on record. Right to file replies are waived by learned counsel for respondent Nos. 1 to 4 since the matter is taken up for final disposal by consent.
7. Heard the learned counsel for the parties at length.
8. The trial Judge has relied upon the decision of the Andhra Pradesh High Court ruling in Marada Venkateshwra Rao v. Oteti Vara Lakshmi & others, 2008 (4) RCR (Criminal), 155 that where there is a conflict whether plaintiff and defendant were born to common mother whose property they claim to have inherited, it is essential to order DNA test, which will set at rest the dispute between the parties regarding the partition of the suit property.
9. The question to be answered here is that when there is no agreement between the parties to subject themselves to DNA profile test can it be ordered or would it be in violation of the standards of "substantive due process" which is required for personal liberty and protection of the right against self-incrimination and subjecting an accused to such a test can have adverse consequences of penal and non-penal nature. The present is not a criminal case and only property rights are asserted and denied. It is also not a case involving legitimacy or paternity of a child in issue, then in those cases the DNA profile test need not be ordered as a matter of routine in all cases and a distinction has to be drawn between ''legitimacy'' and ''paternity'' of the child. Legitimacy can be established by legal presumption while it is desirable to establish paternity by DNA profile test particularly when both parties agree.
10. The recent test case is
"10. The learned Single Judge, in the impugned judgment, has framed the following question:
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?
11. The impugned judgment though running into 109 pages, but the ratio thereof-is, that though a matrimonial Court and the Civil Court has the implicit and the inherent power to order a person to submit himself for medical examination and to issue a direction to hold a scientific, technical and expert investigation but if despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court is entitled only to take the refusal on record to draw an adverse inference therefrom. Reliance in this regard is placed on Sharda (supra). It is also observed that physical confinement for forcible drawing of blood sample or sample of any other bodily substances is not envisaged in any statutory provision governing civil legislation under any tenet of justice. The learned Single Judge has observed that mandatory testing upon an unwilling person would entail an element of violence and intrusion of a person''s physical person and may leave irreparable scars and is unwarranted and impermissible under Article 21 of the Constitution of India. It was thus concluded that the respondent No. 1 could not be physically confined for the purpose of giving a blood sample and to ensure compliance of the order dated 23rd December, 2010.
12. The Apex Court undoubtedly in
13. The Supreme Court in
14. In our view, to say, that the exercise earlier undertaken by the Court, was an empty one and in futility that though the Court could issue a direction for DNA testing but not implement or enforce the same, has the tendency of making the law and the Court, a laughing stock. The perception of "the law" as Mr. Bumble (in Oliver Twist) said "is a ass "a idiot" will be cemented, if the Courts themselves hold their own orders to be unimplementable and un-enforceable. It is the duty of every Court to prevent its machinery from being made a sham, thereby running down the Rule of Law and rendering itself an object of public ridicule. The House of Lords, in Attorney General v. Guardian Newspapers Ltd. (1987) 1 W.L.R. 1248 observed that public interest requires that we have a legal system and Courts which command public respect and if the Courts were to make orders manifestly incapable of achieving their avowed purpose, law would indeed be an ass. It was further held that the Court should not make orders which would be ineffective to achieve what they set out to do."
Then again:
"20. As far as the aspect of there being no statutory provision(s) for implementability/enforceability of such an order is concerned, we had during the hearing also invited the attention of the counsels to Section 51 of the CPC dealing with "Powers of Court to enforce execution". The same, after prescribing the various modes of execution, in Clause (e) provides for execution "in such other manner as the nature of the relief granted may require. The Supreme Court in
It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially farmed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language o the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.
In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act''s passing, in law, in social conditions, technology, the meaning of words and other matters... That today''s construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.
An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials."
11. I had occasion to deal with such an issue in a property dispute in CR No. 602 of 2014; Ajaib Singh v. Smt. Surjit Kaur decided on 28th January, 2014. I upheld the order of the Additional Civil Judge (Senior Division), Phillaur ordering DNA profile test by observing:--
"In the main, this court is of the considered opinion that the learned Additional Civil Judge (Senior Division), Phillaur has rightly paved the way to substantial justice by ordering the test which the petitioner cannot be seen to resist with vigour. Consent in my view would take a back seat when justice sits at the steering wheel. Some lawful actions can well be nonconsensual. Criminal investigation and search and seizure, for instance. The present case seems to me a deserving case in which such an order could have well been passed. I would, therefore, not lightly interfere with the same. The trial court is a court of fact and nothing should be seen to prevent it, in its discretion judiciously exercised, from doing justice. I find no palpable error of jurisdiction in the impugned order sufficient to interfere in exercise of power of superintendence over subordinate courts this court exercises, to keep them within the confines of their jurisdiction. There has been no overstepping here. No substantial injustice would result if the order is implemented and blood sample drawn. No prejudice will be caused to the plaintiff if he is subjected to the test which is now scientifically recognized as the most accurate method known today to confirm or dispel doubts about a biological relationship between two or more persons along their direct maternal line. The resistance of the plaintiff to the test itself leads to doubt, significant enough to take the doubt to its logical end. He has stakes in property, so does she in defence. It was not for nothing that T.S. Eliot concluded his poem ''The Wasteland'' invoking the benediction; "Datta, Dayadhvam. Damyata. Shantih shantih shantih" quoting from the Brihadaranyaka Upinashad and Sanskrit for: Give, cooperate, accept others- Peace, peace, peace. The test results give the rather rare but precious thing called, peace of mind.
12. Learned counsel for the petitioner has relied on the following judgments of the Supreme Court in
13. These are cases mostly relating to the criminal law, paternity issues and grant of succession certificates. In criminal cases, there is normally a bar from self-incrimination in view of protections afforded by Article 21 of the Constitution where such tests could seriously impair defence and prosecution. S. 112 of the Evidence Act is the pivotal point for consideration of such request in paternity cases which stand on an entirely different footing where declaration of the illegitimacy of a child is an engaging social and legal dilemma for the Court in the rubric of osterization by society of a person by any such decree issued. The basic principle evolved by courts is that the DNA test is not to be directed as a matter of routine and should be resorted to only in deserving cases. This subject forensic territory has been further explored and explained in extremely grim facts recently in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, 2014 STPL (Web) 6 SC, delivered by the Supreme Court very recently in Criminal Appeal No. 24 of 2014 arising out of Special Leave Petition (Crl.) No. 8852 of 2008. The decision was handed down by the Supreme Court on 06th January, 2014. The appeal arose out of proceedings under S. 125 of the Code of Criminal Procedure, 1973 in a claim for maintenance laid by wife and her daughter against the defendant, the alleged father. The petition was resisted by the husband on the ground that the child was not his. The Supreme Court observed on the veracity of the test as follows:
"Before we proceed to consider the rival submissions, we deem it necessary to understand what exactly DNA test is and ultimately its accuracy. All living beings are composed of cells which are the smallest and basic unit of life. An average human body has trillion of cells of different sizes. DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. Human cells contain 46 chromosomes and those 46 chromosomes contain a total of six billion base pair in 46 duplex threads of DNA. DNA consists of four nitrogenous bases - adenine, thymine, cytosine, guanine and phosphoric acid arranged in a regular structure. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion. Given that the Earths population is about 5 billion, this test shall have accurate result. It has been recognized by this Court in the case of Kamti Devi (supra). (
14. In
22. 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 discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test 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."
(underlined for emphasis)
15. The balance to be struck by court in the interest of the parties clearly lies in its duty to reach the truth and to "follow truth wherever it may lead" to use the words in parenthesis spoken by Justice Bronson, Chief Justice, New York Supreme Court in Pierce v. Delamater I NY 3 (1847) : A.M.Y. p.18.
16. This being the position with respect to the authenticity and efficacy of the DNA test in the modern world of science I would, therefore, apply its accurate and beneficial contemplated results to the case in hand, a mere property dispute, and would conclude that both the impugned orders passed by the trial Judge are legal and valid and not open to interference. In the diametrically opposite stands of the parties 1 cannot reasonably fathom as to how the dispute can be readily resolved by oral and documentary evidence alone, the parties being at loggerheads and limited by court evidence system and therefore the ''eminent need'' test applied by the Supreme Court in Bhabani in venturing to arrive at the truth by the result of the genuine DNA profile test, should be followed here in this case which will erase any possible undue advantage either party may have without it.
17. In Nandlal Wasudeo Badwaik the Supreme Court applied the principle of exclusion of legal presumption to truth determined by the DNA test, exclaiming aphoristically: "...It is denying the truth. Truth must triumph is the hallmark of justice".
18. Interference in this case to my mind is not called for. I am inclined to think that the trial judge has committed no error of law or fact or of jurisdiction in passing the orders exercising his discretion judiciously, with which I concur in conclusion.
19. This petition thus stands dismissed. It would now be for the trial Judge to fix a fresh date and time for appearance of the parties at Forensic Science Laboratory, Madhuban, Karnal for drawing samples of blood with police help if required. In case police assistance is found absolutely necessary then a direction is issued to the police to offer help politely and with reasonable force and care, in case resistance is offered by the petitioner-defendant. Expenses of the test and cost of police assistance rendered, if required, to the extent of actual expenditure incurred in travel to and fro by Government vehicle or by an escort will be borne by the plaintiffs on presentation of bills by the police department.
