JUDGMENT
V.S. Aggarwal, J.
1. The main question which craves for an answer is
as to whether the petitioner can resist the request of
respondent No. 1 for directing the Pathology Department
of the All India Institute of Medical Sciences, New
Delhi to prepare a slide containing the blood cells of
respondent No. 1 and calling for the slides and blocks
of the case relating to the petitioner and order a DNA
test with a view to ascertain if respondent No. 1 is
the father of the foetus.
The petitioner’s claim is that such an order
would infringe her constitutional right of her
privacy.
2. The present application under consideration
arises as a result of the following facts. The
petitioner has filed a petition for dissolution of
marriage on the ground of cruelty and adultery against
respondent No. 1 under Section 10 of the Indian Divorce
Act. The said petition is being contested on the
ground of counter-allegations of similar nature.
3. Respondent No. 1 by virtue of I.A. 3804/99 contends
that case of the petitioner is that respondent No. 1
had adulterous affair with respondent No. 2 and the
respondent No. 1 on the contrary asserts that
petitioner had adulterous affairs with one Jose
Thomas, which resulted in petitioner being on family
way. It is now not much in issue between the parties
whether the pregnancy of the petitioner, which was
admitted a tubular pregnancy was terminated on
30.12.1994 at All India Institute of Medical Sciences.
Respondent No. 1 asserts that he has come to know that
records and slides of tubular gestation of the
petitioner have been preserved in All India Institute
of Medical Sciences. The slides are kept under
Hospital Registration No. 415330. It contains cells of
aborted foetus and therefore, while respondent No. 1
asserts that he is not the father of the same, he
seeks that a DNA test would also be beneficial and it
would establish as to who is the father of the aborted
foetus. With these assertions, it has been claimed
that the pathology department of the All India
Institute of Medical Sciences be directed to prepare
the slides containing the blood cells of respondent
No. 1 and court should call for slides and blocks of
the case relating to operation of the petitioner and
send it for test (DNA test).
4. Needless to state that in the reply filed, the
application as such, has been contested. It has been
asserted that the petition has been filed only to
delay the disposal of divorce petition and that
respondent No. 1 is trying to create smoke screen for
his own affairs. It is denied that DNA examination of
the slides would conclusively prove the paternity of
the foetus. It is alleged that the courts in India do
not have the authority to order DNA test in civil and
quasi-civil matters in particular, where it is to
establish the paternity even of living child where
husband had the access. Such an order, it is alleged,
would be in violation of the constitutional and legal
rights of the petitioner.
5. It is in this back-drop of these facts that the
main question referred to above, comes up for
consideration. But before covering into the same,
it would be appropriate to deal with the other
submissions that were made at the bar. Learned
counsel for the petitioner urged that there is no
provision permitting the collection of the evidence at
the behest of the court and, therefore, such and order,
as such, would not be passed.
6. It is true that the Code of Civil Procedure or
the Indian Evidence Act does not specifically deal
with any such situation that court can direct or be
instrumental in collecting the evidence for or on
behalf of the either party. When the parties litigate
it is for them to produce the necessary evidence
relevant for disposal of the matter but just
exceptions would always creep in. When certain
evidence can not be allowed or collected, without the
order of the court in that event either of the party
can seek the intervention of the court. Reverting
back to the controversy in the present case, it is
obvious that when DNA test with respect to the slides
pertaining to the foetus of the petitioner is to be
conducted and the said foetus is stated to be in All
India Institute of Medical Sciences, necessarily, it
would required an order of the court before slides
would be prepared. In that view of the matter in
peculiar facts, such an order, as permissible in law,
would be necessary and it can not be termed that
evidence would be collected at the behest of the
court.
7. Yet another limb of the argument was that since
the foetus is a part of the body of the petitioner,
without her consent such a test can not be conducted
and stress is laid on the fact that she can not be
compelled to agree for such a test. In support of her
claim, learned counsel relied upon one of the earliest
decisions on the subject in the case of POLAVARAPU
VENKATASWARLU v. POLAVARAPU SUBBAYYA, . In the cited case, an application was filed
about legitimacy of the plaintiff in the suit. The
defendant was alleged to be the father and he was
disputing the same. The Madras High Court held that
if parties are unwilling to offer their blood for test
of this kind, the court will not force them to do so.
In paragraph 4, the findings recorded were :-
That may be. But I am not in any event
satisfied that if the parties are unwilling
to offer their blood for a test of this kind
this Ct. can be forced to do so.
Mr. Krishnamurthi says that his clients are
not prepared to offer their blood for such a
test.
8. In another case, reported as SABAYYA GOUNDER
v. BHOOPALA SUBRAMANIAN, when a
similar question cropped up under Section 488 of the
Code of Criminal Procedure, 1908 corresponding to
Section 125 of the Code of Criminal Procedure, 1973.
The same court referred to Article 20(3) of the
Constitution to conclude that no person accused of any
evidence shall be compelled to be a witness against
himself and once again the finding was that if the
party concerned is unwilling to such a test, the court
can not direct them to submit accordingly. It was
held :
In India there is no special statute and
there is no provision either in the Criminal
Procedure Code or in the Indian Evidence Act
empowering Courts to direct such a test to be
made. Similarly, as pointed out by Raghava
Rao, J. in Venkateswarlu v. Subbayya
there is no procedure either in the Civil
Procedure Code or the Evidence Act which
provides for a blood test being made of a
minor and his mother when the father is
disputing the legitimacy of the minor and
held that if the parties are unwilling to
submit to such a test the Court has no power
to direct them to submit themselves to such a
test.
9. Bombay High Court in the case of SADASHIV
MALLIKARJUN KHERADKAR v. NANDINI SADASHIV
KHERADKAR AND ANR., 1995 CRL.L.J. 4090 the court
relied upon the decision of the Supreme Court in the
case of Goutam Kundu v. State of West Bengal and held that the court has power
to direct blood examination but it should not be done
as a matter of course or to have roving inquiry.
The Bombay High Court even felt that there should be a
suitable amendment by the legislature and after noting
that no body can be compelled to give blood sample, it
was held that the court can give a direction but can
not compel giving of blood sample. The findings in
this regard are :
…”There must be some strong prima facie
case to be established by the husband to show
non-access in order to get over the legal
presumption under Section 112 of the Evidence Act
and Supreme Court has also observed that
nobody can be compelled to give blood sample.
Therefore, the position is that the Court has
power to give a direction to a party to give
blood sample for the purpose of examination
of the same but the party cannot be compelled
to give blood for testing purpose. In order
words, the Court can direct a party and if
the party fails to obey the direction, the
Court cannot compel the party to give blood
sample. In such circumstances, when there is
a direction and non-compliance by a party,
the only thing is that the Court may drawn an
adverse inference against the party who fails
to give blood samples in spite of the
direction of the Court.”
10. Madras High Court once again, in the case of
D. RAJESWARI v. STATE OF TAMIL NADU, 1996
CRL.L.J. 3795 was concerned with a matter where there
was a major girl of 18 years, who had been impregnated
due to rape by several persons. Bearing and rearing
of child in her womb would have agonised her entire
life. The Madras High Court held that the pregnancy
should be terminated. The foetus should be preserved
so that the investigating agency could seek DNA test.
The findings in this regard in paragraph 35 read :
35. In view of the above discussion, I deem
it fit to direct the Chairman and
Superintendent, Government Kasturaba Gandhi
Hospital for Women and Children, Madras-5, to
conduct medical termination of pregnancy of
the petitioner and preserve foetus to enable
the investigating agency to ask for DNA test,
which would be helpful in order to prove the
case of rape alleged by the petitioner,
against the persons during the course of
trial.
11. The conclusions are obvious that nobody can
be compelled without his consent to submit to DNA
test. A direction can be issued. Such direction
should not be done in the ordinary course, in routine
or as a roving inquiry. A strong prima-facie case
should be made out.
12. In the facts of the present case, at this
stage, the foetus is not apart of the body of the
petitioner. It had already been discharged. It is
true that the carrying of the foetus would depend upon
the mother but the bond between them came to an end
when it was discharged. It can not thereafter be
treated as a part of the mother, but was a unique
organism. When the foetus has already been discharged
from the body of the petitioner there is no question.
of compelling her to submit to any test. It is an
organise, which has been preserved and, therefore,
once the organism is preserved, the petitioner can not
claim that it should not be put to any test. The
question of compelling her to do any particular act
does not arise. This argument, therefore, so much
thought of by the learned counsel for the petitioner,
must fail.
13. The main argument, as already referred to
above, however, was that it affects the rights of life
of the petitioner, which includes the right of
privacy. It would affect the confidentiality that the
petitioner has in this regard.
14. It is not in controversy that right of
privacy is a part of right to life enshrined under
Article 21 of the Constitution. This came up for
consideration before the Supreme Court in the case of
KHARAK SINGH v. STATE OF U.P. AND ORS., . The Supreme court detailed the said
right in the following words :
We shall now proceed with the examination of
the width, scope and content of the
expression “personal liberty” in Article 21.
Having regard to the terms of Article 19(1)(d),
we must take it that that expression is used
as not to include the right to move about
rather of locomotion. The right to move
about being excluded its narrowest
interpretation would be that it comprehends
nothing more than freedom from confinement
within the bounds of a prison; in other
words, freedom from arrest and detention,
from false imprisonment or wrongful
confinement. We feel unable to hold that the
term was intended to bear only this narrow
interpretation but on the other hand consider
that “personal liberty” is used in the
Article as compendious term to include
within itself all the varieties of rights
which go to make up the “personal liberties”
of man other than those dealt with in the
several clauses of Article 19(1). In other
words, while Article 19(1) deals with particular
species or attributes of that freedom,
“personal liberty” in Article 21 takes in and
comprises the residue. We have already
extracted a passage from the judgment of
Field J. Munn v. Illinois (1876) 94 US
113 at p. 142 where the learned Judge pointed
out that “life” in the 5th and 14th
Amendments of the U.S. Constitution
corresponding to Article 21, means not merely the
right to the continuance of a person’s animal
existence, but a right to the possession of
each of his organs – his arms and legs etc.
We do not entertain any doubt that the word
“life” in Article 21 bears the same
signification. Is then the word “personal
liberty” to be construed as excluding from
its purview an invasion on the part of the
police of the sanctity of a man’s home and an
intrusion into his personal security and his
right to sleep which is the normal comfort
and a dire necessity for human existence even
as an animal? It might not be inappropriate
to refer here to the words of the preamble to
the Constitution that it is designed to
“assure the dignity of the individual” and
therefore of those chershed human values as
the means of ensuring his full development
and evolution. We are referring to these
objectives of the framers merely to drew
attention to the concepts underlying the
constitution which would point to such vital
words as “personal liberty” having to be
construed in a reasonable manner and to be
attributed that sense which would promote and
achieve those objectives and by no means to
stretch the meaning of the phrase to square
with any pre-conceived notions or doctrine
constitutional theories. Frankfurter, J.
observed in Wolf v. Colorado, (1948) 338 US
25.
“The security of one’s privacy arbitrary
intrusion by the police …. is basic to
a free society. It is therefore implicit in
‘the concept of ordered liberty’ and as such
enforceable against the States through the
Due Process Clause. The knock at the door,
whether, by day or by night as a prelude to a
search, without authority of law but solely
on the authority of the police, did not need
the commentary of recent history to be
condemned as inconsistent with the conception
of human rights enshrined in the history and
the basic constitutional documents of
English-speaking peoples….. We have no
hesitation in saying that were a State
affirmatively to sanction such police
incursion into privacy it would run counter
to the guarantee of the Fourteenth
Amendment”.
Murphy, J. considered that such invasion was
against “the very essence of a scheme of
ordered liberty”.
15. From that time onwards the said right has
made deep in roots into the right to life.
16. It also came up for consideration with
respect to freedom of press in the case of RAJAGOPAL
ALIAS R.R. GOPAL v. STATE OF T.N. AND ORS.,
, but the basic principles about right
of privacy to be fundamental right, came up for
consideration. Certain guidelines were provided and
the Supreme Court held that once the matter becomes a
matter of public record, the right of privacy no
longer subsists. The two paragraphs in this regard
read :
(1) The right to privacy is implicit in the
right to life and liberty guaranteed to the
citizens of this country by Article 21. It
is a “right to be let alone.” A citizen has
a right to safeguard the privacy of his own,
his family, marriage, procreation,
motherhood, Child-bearing and education among
other matters. None can publish anything
covering the above matters without his
consent – whether truthful or otherwise and
whether laudatory or critical. If he does
so, he would be violating the right to
privacy of the person concerned and would be
liable in an action for damages. Position
may, however, be different, if a person
voluntarily thrusts himself into controversy
or voluntarily invites or raises a
controversy.
(2) The rule aforesaid is subject to the
exception, that any publication concerning
the aforesaid aspects becomes unobjectionable
if such publication is based upon public
records including court records. This is for
the reason that once a matter becomes a
matter of public record, the right to privacy
no longer subsists and it becomes a
legitimate subject for comment by press and
media among others. We are, however, of the
opinion that in the interests of decency
(Article 19(2)) an exception must be carved
out to this rule, viz, a female who is the
victim of a sexual assault, kidnap, abduction
or a like offence should not further be
subjected to the indignity of her name and
the incident being publicised in
press/media.”
(Emphasis added) .
17. In the case of telephone tapping (PEOPLE’S
UNION FOR CIVIL LIBERTIES v. UNION OF INDIA). once against the said right had been
recognized.
18. Reference with advantage further can be made
to the Supreme Court in the case of ‘X’ v.
HOSPITAL ‘Z’ (1998) 8 SCC 296 it was concluded by the
Supreme Court that right of privacy can not be treated
to be an absolute right and in paragraph 26, the
Supreme Court provided the following important
guidelines :
26. As one of the basic Human Rights, the
right of privacy is not treated as absolute
and is subject to such action as may be
lawfully taken for the prevention of crime or
disorder or protection of health or morals or
protection of rights and freedoms of others.
27. Right of privacy may, apart form
contract, also arise out of a particular
specific relationship which may be
commercial, matrimonial, or even political.
As already discussed above, doctor-patient
relationship, though basically commercial,
is, professionally, a mater of confidence
and, therefore, doctors are morally and
ethically bound to maintain confidentiality.
In such a situation, public disclosure of
even true private facts may amount to an
invasion of the right of privacy which may
sometimes lead to the clash of one person’s
“right to be let alone” with anther person’s
right to informed.
28. Disclosure of even true private facts
has the tendency to disturb a person’s
tranquillity. It may generate many complexes
in him and may even lead to psychological
problems. He may, thereafter, have a
disturbed life all through. In the face of
these potentialities, and as already held by
this Court in its various decision referred
to above, the right of privacy is an
essential component of the right to life
envisaged by Article 21. The right, however,
is not absolute and may be lawfully
restricted for the prevention of crime,
disorder or protection of health or morals or
protection of rights and freedom of others.”
19. From the aforesaid the conclusion can
conveniently be drawn, viz,, that right of privacy
though a fundamental right, forming part of right to
life enshrined under Article 21 can not be taken to be
an absolute right. The right of privacy may arise
from contract and also may arise from a particular
specific relationship including matrimonial but when
the right to privacy has become a part of a public
document, in that event a person concerned, indeed can
not insist that any such test would infringe his/her
right of privacy.
20. The position herein can again be taken note
of. As already referred to above, the foetus is no
more a part of the body of the petitioner. The
petitioner indeed has a right of privacy but it being
not an absolute right, therefore, when a foetus has
been preserved in All India Institute of Medical
Sciences, the petitioner, who has already discharged
the same can not claim that it affects her right of
privacy. Adultery has been alleged to be one of the
grounds of divorce. At this state, the court is not
expressing any opinion on merits of the matter, but
the petitioner indeed can not resist the request of
respondent No. 1. However, if the petitioner was being
compelled to subject herself to blood test or
otherwise, she indeed could raise a defense that she
can not be compelled to be a witness against herself
in a criminal case or compelled to give evidence
against her own even in a civil case but the position
herein is different. The petitioner is not being
compelled to do any such act. Something that she
herself has discharged, probably with her consent, is
claimed to be subjected to DNA test. In that view of
the matter, in the peculiar facts, it can not be
termed that the petitioner has any right of privacy.
21. For these reasons, the application is
allowed. It is directed that at the cost of
respondent No. 1, the Pathology Department of the All India
Institute of Medical Sciences shall prepare a slide of
blood cells of respondent No. 1, It shall also call for
slides and blocks of the case relating to operation of
the Petitioner (Registration No. 415330 – Gynea III,
Ward/OPD-AB3/15, admitted on 29.12.1994 and discharged
on 4.1.1995. It is directed that DNA test would be
conducted to ascertain if respondent No. 1 is the
father of the foetus. It is sent to Central Forensic
Science Laboratory, 30, Gorachand Road, Calcutta (West
Bengal).
22. I.A. stands disposed of.
Mat.1/96
List it for further proceedings on 12.2.2002.
23. Order was pronounced on 20th December 2001. On it being mentioned the file has been taken up. At
joint request it is directed that if the matter has to
be reported the names of the parties should not
appear. In case of the petitioner it should be
mentioned as Ms. X. In case of the respondent it
should be mentioned as Mr. Z.