JUDGMENT Deepak Gupta, J. Petitioner - defendant is aggrieved by the order dated 07.05.2018 (Annexure P6) passed by ld. Civil Judge (Sr. Division), Sonepat during the proceedings of Civil Suit No.381 of 2017 titled 'Ramdei @ Om Pati v. Chand Kaur and others', whereby an application moved by respondent No.1-plaintiff for taking blood samples for conducting the DNA test, has been allowed. 2.1 According to the petitioner-Chand Kaur, she had earlier filed a Civil Suit No.436 of 2007 against Attar Singh, Siya Ram and Rattan Singh (respondents No.2 to 4 herein), claiming the suit property to be inherited by her from her father Harphool Singh. She had challenged a Will, which was relied upon by the respondents Attar Singh etc. Suit of the petitioner-Chand Kaur was decreed on 19.04.2012. That judgment and decree was upheld up to this Court in RSA-4679-2013 on 15.07.2014. 2.2. Petitioner then filed an execution petition in respect of the judgment and decree dated 19.04.2012, during which Smt. Ramdei @ Omi Pati (respondent No.1 herein) filed 3rd party objections, by claiming herself to be the daughter of Harphool Singh. Not only this, said Ramdei @ Om Pati filed civil suit No.381 of 2017 for declaration, possession and permanent injunction by claiming herself to be a daughter of Harphool Singh along with petitioner-Chand Kaur. She challenged the judgment and decree dated 19.04.2012 to have been obtained by Chand Kaur-petitioner by way of fraud. 2.3 The petitioner filed written statement in the aforesaid suit, raising objection that plaintiff of the suit Smt. Ramdei @ Om Pati in the previous litigation had all along been claiming herself to be the daughter of Shiv Dayal. The petitioner made reference of not only the various civil litigations, but also the documents, which had been produced by the said respondent including Sirza Nasab, Aadhar Card, Voter Identity Card and mutation of inheritance etc., wherein respondent No.1 Ramdei @ Omi Pati had claimed herself to be the daughter of Shiv Dayal and had inherited his property. It was further alleged by the petitioner that the Suit No.381 of 2017 had been filed by respondent No.1 in collusion with respondent Nos.2 to 4 after the passing of the judgment & decree dated 19.04.2012 and in order to prolong the result of the execution. It was further alleged by the petitioner that the Suit No.381 of 2017 had been filed by respondent No.1 in collusion with respondent Nos.2 to 4 after the passing of the judgment & decree dated 19.04.2012 and in order to prolong the result of the execution. 2.4 During the pendency of the suit, as filed by Ramdei @ Om Pati, said Ramdei @ Omi Pati moved an application for taking blood samples of petitioner and respondent No.1 for conducting DNA test in order to claim that they were the daughters of Harphool Singh. That application has been allowed by the Court by way of the impugned order dated 07.05.2018, which has been assailed by way of the present petition. 3. Ld. counsel contends that respondent No.1 has all along been admitting herself to be the daughter of Shiv Dayal in the various litigation's as well as in the various documents relied by her in the previous litigation's and therefore, the impugned order is not sustainable. It is further contended by ld. counsel that since it is respondent No.1 (plaintiff of the Civil Suit No.381 of 2017), who claimed to be the daughter of Harphool Singh, therefore, the burden of proof lies upon her to produce the cogent evidence so as to prove her assertion and that Court cannot permit collecting the evidence by conducting the DNA test in this regard. 4. Notice of motion was issued. Initially appearance was made on behalf of the respondents, but later on, nobody put in appearance so as to contest the petition. 5. I have considered submissions of Ld. Counsel for the petitioner and have perused the paper-book. 6. Since it is the plaintiff - respondent N: 1, who approached the court, by claiming herself to be the daughter of Harphool Singh along with the petitioner-defendant No.1-Chand Kaur, which assertion has been denied by the petitioner, the question is that plaintiff can ask for conducting DNA test, particularly, when petitioner has denied her consent for the purpose. The legal position in this regard has been explained by Hon'ble Supreme Court in Ashok Kumar v. Raj Gupta and others, 2021(3) Law Herald (SC) 2028, wherein it was held as under: "7. The pleadings were exchanged quite early in the Civil Suit No. 53/2013, but only after closure of the plaintiff's evidence, the defendants filed application on 19.4.2017 for subjecting the plaintiff to a DNA test. The pleadings were exchanged quite early in the Civil Suit No. 53/2013, but only after closure of the plaintiff's evidence, the defendants filed application on 19.4.2017 for subjecting the plaintiff to a DNA test. The question therefore is, whether in a declaratory suit where ownership over coparcenary property is claimed, the plaintiff, against his wishes, can be subjected to the DNA test. The related question is whether the plaintiff without subjecting himself to a DNA test, is entitled to establish his right over the property in question, through other material evidence. The timing of the application is equally relevant. The plaintiff has already led evidence from his side to prove relationship between the parties and at this stage whether the High Court should have directed the plaintiff to undergo the DNA test. Another issue of concern is whether in the absence of consent, a party can be forced to provide sample for a DNA test. 8. This court in Banarsi Dass v. Teeku Dutta, 2005(4) SCC 449 had declared that DNA test is not to be directed as a matter of routine but only in deserving cases. A petition was filed in that case for grant of succession certificate in respect of properties of the deceased. The Plaintiff claimed to be the deceased's daughter and the only Class 1 legal heir, under the Hindu Succession Act, 1956. The deceased had died intestate, leaving behind 5 brothers. The Delhi High Court denied one of the brother's applications for conducting the DNA test of the daughter to establish her paternity. Justice Arijit Pasayat upheld the decision of the High Court in the following passage of the judgment: - "10. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater is est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality." 9. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality." 9. In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr, (2010) 8 SCC 633 , Justice R.M. Lodha, while reconciling two earlier decisions of this Court on the point, had rightfully prescribed that; "23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu [ (1993) 3 SCC 418 : 1993 SCC (Cri) 928] and Sharda [ (2003) 4 SCC 493 ]. In Goutam Kundu [ (1993) 3 SCC 418 : 1993 SCC (Cri) 928] 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 the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda [ (2003) 4 SCC 493 ] 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 test can be given by the court only if a strong prima facie case is made out for such a course." The learned Judge while noting the sensitivities involved with the issue of ordering a DNA test, opined that the discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of "eminent need". 10. The above decision in Bhabani Prasad Jena (supra) was considered and approved in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365 where the Court noticed from the facts that the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In those circumstances, when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court. Even then, Justice J.S. Khehar, writing for the Division Bench, considered it appropriate to record a caveat to the effect that the wife may refuse to comply with the High Court direction for the DNA test but in that case, presumption may be drawn against the party. 11. 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 presumption in law of legitimacy of a child cannot be lightly repelled." 7. Hon'ble Supreme Court held further in Ashok Kumar's (supra) as under: "12. 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 is 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. 13. DNA is unique to an individual (barring twins) and can be used to identify a person's identity, trace familial linkages or even reveal sensitive health information. 13. DNA is unique to an individual (barring twins) and can be used to identify a person's identity, trace familial linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S Puttaswamy v. Union of India, wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e. whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test. It cannot be overlooked that in the present case, the application to subject the Plaintiff to a DNA Test is in a declaratory suit and the plaintiff has already adduced evidence and is not interested to produce additional evidence (DNA), to prove his case. It is now the turn of the defendants to adduce their evidence. At this stage, they are asking for subjecting the plaintiff to a DNA test. Questioning the timing of the application the trial Court dismissed the defendants application and we feel that it was the correct order. 14. In the yet to be decided suit, the plaintiff has led evidence through sworn affidavits of the Respondents, his School Leaving Certificates and his Domicile Certificate. Significantly, the respondent No.1, who is one of the 3 siblings (defendants) had declared in her affidavit that the Plaintiff was raised as a son by her parents. Therefore, the nature of further evidence to be adduced by the plaintiff (by providing DNA sample), need not be ordered by the Court at the instance of the other side. In such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence. 15. 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. 15. 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 v. Dharampal 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. 16. The respondent cannot compel the plaintiff to adduce further evidence in support of the defendants' 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." 8. From the aforesaid legal position as explained by Hon'ble Supreme Court, the law regarding DNA is quite well settled to the effect that it is for the plaintiff to lead evidence in support of her case. Plaintiff has to stand on her own legs by producing cogent evidence to prove her assertions. Petitioner, the defendant of the case, cannot be compelled by respondent No.1-plaintiff to undergo the DNA test. The Court cannot order a DNA test as a matter of course and such a prayer cannot be granted so as to lead to a rowing inquiry so as to collect the evidence for the plaintiff. 9. Petitioner, the defendant of the case, cannot be compelled by respondent No.1-plaintiff to undergo the DNA test. The Court cannot order a DNA test as a matter of course and such a prayer cannot be granted so as to lead to a rowing inquiry so as to collect the evidence for the plaintiff. 9. In present case, as is evident from the reply (Annexure P5), which was filed by the petitioner before the trial Court in response to the application for taking blood sample for DNA test, she had not only given the reasons for opposing the application for conducting the DNA test, she also expressed her unwillingness to get the DNA test conducted. It is important to notice that it is the plaintiff-respondent No.1, who approached the Court by alleging herself to be the daughter of Harphool Singh, along with the petitioner-defendant No.1-Chand Kaur. Therefore, it is for respondent No.1- plaintiff to prove this assertion by way of cogent evidence, particularly in view of the stand taken by the petitioner in her written statement to the effect that in numerous earlier litigation's, respondent No.1-plaintiff has all along been claiming herself to be the daughter of Shiv Dayal and inherited his property. In those litigations, she even produced various identity documents by claiming herself to be the daughter of Shiv Dayal. 10. In the facts and circumstances of this case, respondent No.1- plaintiff has failed to make a strong prima facie case for DNA test. A similar view was taken by this Court in Sukhwinder Kaur v. Gurmeet Singh, 2023 (244) AIC 683 and also Manjit Kaur v. Inderjit Singh and others, 2022 (2) Law Herald 1716. 11. In view of the factual and legal position as explained above, the impugned order, as passed by the trial Court, cannot be sustained in the eyes of law. The said impugned order is hereby set aside. This revision petition is allowed accordingly.