Research › Search › Judgment

Kerala High Court · body

2009 DIGILAW 1092 (KER)

Ramakrishnan v. Ramadas

2009-11-16

S.S.SATHEESACHANDRAN

body2009
JUDGMENT : 1. The Writ Petition is filed seeking mainly the following relief: “To set aside Ext.P3 order dated 26.6.2009 and dismiss I.A.No.4209/2009 in O.S.No.171/2007 of the 2nd Additional Sub Court, Ernakulam, so far it directs that one among the petitioners shall give sample of blood for DNA profile analysis.” 2. Petitioners are the defendants 1 to 4 in O.S.No.171 of 2007 on the file of the Sub Court, Ernakulam Respondents 1 and 2 are the plaintiffs in the suit. Third respondent is the 5th defendant, and respondents 4 and 5, defendants 6 and 7 in the suit. Respondents 1 and 2 filed the suit for partition and separate possession of the plaint property alleging they are the children of one late Narayanan, to whom the plaint property belonged, and one Devaki. Defendants 1 to 4, present petitioners, according to the plaintiffs, are the children of late Narayanan from his second wife, the 5th defendant/the present third respondent. Defendants 6 and 7/present respondents 4 and 5, are stated to be purchasers of the plaint property from defendants 1 to 5, petitioners and their mother, third respondent (5th defendant), the sale of which, according to the plaintiffs, is not binding on them. Defendants 1 to 5 have resisted the suit claim filing a .written statement, in which among other contentions, they have disputed the paternity of the plaintiffs as the children of late Narayanan. Trial of the suit is in progress and among the witnesses examined on behalf of the plaintiffs, P.W.2 is stated to be the brother of late Narayanan. In view of the challenges raised against their paternity, plaintiffs have moved PI application to have a DNA profile analysis of their blood samples with that of P.W.2 and one among the defendants 1 to 4 at Rajiv Gandhi Institute of Biotechnology, Thiruvananthapuram, after collecting the blood samples from all of them and sending them over to the Institute for the analysis. The first defendant, on behalf of defendants, 1 to 4, filed P2 counter affidavit contending that they cannot be directed to give blood samples as,that would amount to compelling them to be witnesses against themselves. The application was also challenged as highly belated, and filed with intend to delay the proceedings. The learned Sub Judge, after hearing both sides; allowed PI application vide P3 order. The application was also challenged as highly belated, and filed with intend to delay the proceedings. The learned Sub Judge, after hearing both sides; allowed PI application vide P3 order. The plaintiffs were directed to produce an affidavit from P.W.2 as to his willingness to give the blood sample for the analysis. Direction was issued to defendants 1.to 4 to give blood samples for profile analysis on receipt of report from the Rajiv Gandhi Institute of Biotechnology, Trivandrum, where the analysis has to be conducted, as to the procedures and expenses to be incurred for such analysis. P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Reiterating the objections canvassed in P2 counter affidavit, the learned counsel for the petitioners/defendants 1 to 4 assailed P3 order contending that compelling the petitioners/defendants to give their blood samples is violative of the constitutional mandate as covered under Article 21 of the Constitution of India as it would amount to give incriminating evidence against themselves. Reliance is placed on Goutam Kundu v. State of West Benga! ( AIR 1993 S.C. 2295 ) and Sindhu v. State of Kerala ( 1999 (2) KLT 755 ) to contend that no one can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him or her for such refusal. I do not find any merit in the challenge raised by the counsel against P3 order. The apex court in Sharda v. Dharmpal (2003) 4 SCC 493 ] considering the authority of a court to issue direction for compelling a party to a suit or proceeding to submit himself for medical examination has unequivocally expressed the view that even if enabling statutory provisions are absent, that does not preclude a court from passing such an order. Right of privacy conferred by Article 21 of the Constitution of India, it was held, cannot be an absolute right, and that some limitations on the right of the individual have to be imposed, particularly, where two competing interest clashed. Right of privacy conferred by Article 21 of the Constitution of India, it was held, cannot be an absolute right, and that some limitations on the right of the individual have to be imposed, particularly, where two competing interest clashed. The apex court has expressed the view the court has to reconcile the competing interest by balancing the interest involved in the proceedings, indicating that orders which are necessary to advance the ends of justice even if it affect the right of privacy of an individual can be passed by the court. Though the apex court in the above case has deait with the question whether a matrimonial court - power to direct a party to undergo medical examination, and any such order would amount to violation of Article 21 of the Constitution of India I find that the principles laid down in that decision apply to other cases also in the ordering of a person to submit for a DNA profile analysis by giving his blood sample. This court in Sathyaraj v. Jayaprakash ( 2008(3) KHC 171 ) after taking into consideration the decision rendered in Goutam Kundu v. State of West Bengal ( AIR 1993 S.C. 2295 ), which has been rendered by a two Judges bench of the apex court, and also the latter decision of the apex court referred to above (Sharda v. Dharmpal (2003) 4 S.C.C. 493 ] ) rendered by a three Judges bench, has expressed the view that the Civil Court has implicit power to direct the parties to undergo DNA test if it finds that will lead to the truth of the matter to be unravelled in the suit. When the position of law on that question has been settled with certainty in unambiguous terms, needless to point out, the challenge raised by the petitioners/defendants against P3 order is unworthy of any merit. Writ Petition is, therefore, dismissed.