{"id":104426,"date":"2001-12-20T00:00:00","date_gmt":"2001-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/alika-khosla-vs-thomas-mathew-and-anr-on-20-december-2001"},"modified":"2018-05-29T17:35:15","modified_gmt":"2018-05-29T12:05:15","slug":"alika-khosla-vs-thomas-mathew-and-anr-on-20-december-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/alika-khosla-vs-thomas-mathew-and-anr-on-20-december-2001","title":{"rendered":"Alika Khosla vs Thomas Mathew And Anr. on 20 December, 2001"},"content":{"rendered":"
Delhi High Court<\/div>\n
Alika Khosla vs Thomas Mathew And Anr. on 20 December, 2001<\/div>\n
Equivalent citations: 2002 (62) DRJ 851<\/div>\n
Author: V Aggarwal<\/div>\n
Bench: V Aggarwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  V.S. Aggarwal, J.   <\/p>\n
 1. The main question which craves for an answer is
\nas to whether the petitioner can resist the request of
\nrespondent No. 1 for directing the Pathology Department
\nof the All India Institute of Medical Sciences, New
\nDelhi to prepare a slide containing the blood cells of
\nrespondent No. 1 and calling for the slides and blocks
\nof the case relating to the petitioner and order a DNA
\ntest with a view to ascertain if respondent No. 1 is
\nthe father of the foetus.\n<\/p>\n
 The petitioner’s claim is that such an order
\nwould infringe her constitutional right of her
\nprivacy.\n<\/p>\n
 2. The present application under consideration
\narises as a result of the following facts. The
\npetitioner has filed a petition for dissolution of
\nmarriage on the ground of cruelty and adultery against
\nrespondent No. 1 under Section 10 of the Indian Divorce
\nAct. The said petition is being contested on the
\nground of counter-allegations of similar nature.\n<\/p>\n
 3. Respondent No. 1 by virtue of I.A. 3804\/99 contends
\nthat case of the petitioner is that respondent No. 1
\nhad adulterous affair with respondent No. 2 and the
\nrespondent No. 1 on the contrary asserts that
\npetitioner had adulterous affairs with one Jose
\nThomas, which resulted in petitioner being on family
\nway. It is now not much in issue between the parties
\nwhether the pregnancy of the petitioner, which was
\nadmitted a tubular pregnancy was terminated on
\n30.12.1994 at All India Institute of Medical Sciences.
\nRespondent No. 1 asserts that he has come to know that
\nrecords and slides of tubular gestation of the
\npetitioner have been preserved in All India Institute
\nof Medical Sciences. The slides are kept under
\nHospital Registration No. 415330. It contains cells of
\naborted foetus and therefore, while respondent No. 1
\nasserts that he is not the father of the same, he
\nseeks that a DNA test would also be beneficial and it
\nwould establish as to who is the father of the aborted
\nfoetus. With these assertions, it has been claimed
\nthat the pathology department of the All India
\nInstitute of Medical Sciences be directed to prepare
\nthe slides containing the blood cells of respondent
\nNo. 1 and court should call for slides and blocks of
\nthe case relating to operation of the petitioner and
\nsend it for test (DNA test).\n<\/p>\n
 4. Needless to state that in the reply filed, the
\napplication as such, has been contested. It has  been
\nasserted that the petition has been filed only to
\ndelay the disposal of divorce petition and that
\nrespondent No. 1 is trying to create smoke screen for
\nhis own affairs. It is denied that DNA examination of
\nthe slides would conclusively prove the paternity of
\nthe foetus. It is alleged that the courts in India do
\nnot have the authority to order DNA test in civil and
\nquasi-civil matters in particular, where it is to
\nestablish the paternity even of living child where
\nhusband had the access. Such an order, it is alleged,
\nwould be in violation of the constitutional and legal
\nrights of the petitioner.\n<\/p>\n
 5. It is in this back-drop of these facts that the
\nmain question referred to above, comes up for
\nconsideration. But before covering into the same,
\nit would be appropriate to deal with the other
\nsubmissions that were made at the bar. Learned
\ncounsel for the petitioner urged that there is no
\nprovision permitting the collection of the evidence at
\nthe behest of the court and, therefore, such and order,
\nas such, would not be passed.\n<\/p>\n
 6. It is true that the Code of Civil Procedure or
\nthe Indian Evidence Act does not specifically deal
\nwith any such situation that court can direct or be
\ninstrumental in collecting the evidence for or on
\nbehalf of the either party. When the parties litigate
\nit is for them to produce the necessary evidence
\nrelevant for disposal of the matter but just
\nexceptions would always creep in. When certain
\nevidence can not be allowed or collected, without the
\norder of the court in that event either of the party
\ncan seek the intervention of the court. Reverting
\nback to the controversy in the present case, it is
\nobvious that when DNA test with respect to the slides
\npertaining to the foetus of the petitioner is to be
\nconducted and the said foetus is stated to be in All
\nIndia Institute of Medical Sciences, necessarily, it
\nwould required an order of the court before slides
\nwould be prepared. In that view of the matter in
\npeculiar facts, such an order, as permissible in law,
\nwould be necessary and it can not be termed that
\nevidence would be collected at the behest of the
\ncourt.\n<\/p>\n
 7. Yet another limb of the argument was  that since
\nthe foetus is a part of the body of the petitioner,
\nwithout her consent such a test can not be conducted
\nand stress is laid on the fact that she can not be
\ncompelled to agree for such a test. In support of her
\nclaim, learned counsel relied upon one of the earliest
\ndecisions on the subject in the case  of   POLAVARAPU
\nVENKATASWARLU v. POLAVARAPU SUBBAYYA,     . In the cited case, an application was filed
\nabout legitimacy of the plaintiff in the suit. The
\ndefendant was alleged to be the father and he was
\ndisputing the same. The Madras High Court held that
\nif parties are unwilling to offer their blood for test
\nof this kind, the court will not force them to do so.
\nIn paragraph 4, the findings recorded were :-\n<\/p>\n
  That may be. But I am not in any event
\nsatisfied that if the parties are unwilling
\nto offer their blood for a test of this kind
\nthis Ct. can be forced to do so.\n<\/p>\n
Mr. Krishnamurthi says that his clients are
\nnot prepared to offer their blood for such a
\ntest.\n<\/p>\n
 8. In another case, reported as   SABAYYA GOUNDER
\nv. BHOOPALA SUBRAMANIAN,      when a
\nsimilar question cropped up under Section 488 of the
\nCode of Criminal Procedure,  1908 corresponding to
\nSection 125 of the Code of Criminal Procedure, 1973.
\nThe same court referred to Article 20(3) of the
\nConstitution to conclude that no person accused of any
\nevidence shall be compelled to be a witness against
\nhimself and once again the finding was that if the
\nparty concerned is unwilling to such a test, the court
\ncan not direct them to submit accordingly. It was
\nheld :\n<\/p>\n
  In India there is no special statute and
\nthere is no provision either in the Criminal
\nProcedure Code or in the Indian Evidence Act
\nempowering Courts to direct such a test to be
\nmade. Similarly, as pointed out by Raghava
\nRao, J. in Venkateswarlu v. Subbayya<\/p>\n
there is no procedure either in the Civil
\nProcedure Code or the Evidence Act which
\nprovides for a blood test being made of a
\nminor and his mother when the father is
\ndisputing the legitimacy of the minor and
\nheld that if the parties are unwilling to
\nsubmit to such a test the Court has no power
\nto direct them to submit themselves to such a
\ntest.\n<\/p>\n
 9. Bombay High Court in the case of   SADASHIV
\nMALLIKARJUN KHERADKAR v. NANDINI SADASHIV
\nKHERADKAR AND ANR.,   1995 CRL.L.J. 4090   the court
\nrelied upon the decision of the Supreme Court in the
\ncase of Goutam Kundu v. State of West Bengal  and<\/a> held that the court has power
\nto direct blood examination but it should not be done
\nas a matter of course or to have roving inquiry.\n<\/p>\n
 The Bombay High Court even felt that there should be a
\nsuitable amendment by the legislature and after noting
\nthat no body can be compelled to give blood sample, it
\nwas held that the court can give a direction but can
\nnot compel giving of blood sample. The findings in
\nthis regard are :\n<\/p>\n
  …”There must be some strong prima facie
\ncase to be established by the husband to show
\nnon-access in order to get over the legal
\npresumption under Section 112 of the Evidence Act
\nand Supreme Court has also observed that
\nnobody can be compelled to give blood sample.
\nTherefore, the position is that the Court has
\npower to give a direction to a party to give
\nblood sample for the purpose of examination
\nof the same but the party cannot be compelled
\nto give blood for testing purpose. In order
\nwords, the Court can direct a party and if
\nthe party fails to obey the direction, the
\nCourt cannot compel the party to give blood
\nsample. In such circumstances, when there is
\na direction and non-compliance by a party,
\nthe only thing is that the Court may drawn an
\nadverse inference against the party who fails
\nto give blood samples  in spite of the
\ndirection of the Court.”\n<\/p>\n
 10. Madras High Court once again, in the case of
\n  D. RAJESWARI v. STATE OF TAMIL NADU,    1996
\nCRL.L.J. 3795   was concerned with a matter where there
\nwas a major girl of 18 years, who had been impregnated
\ndue to rape by several persons. Bearing and rearing
\nof child in her womb would have agonised her entire
\nlife. The Madras High Court held that the pregnancy
\nshould be terminated. The foetus should be preserved
\nso that the investigating agency could seek DNA test.\n<\/p>\n
 The findings in this regard in paragraph 35 read :\n<\/p>\n
  35. In view of the above discussion, I deem
\nit fit to direct the Chairman and
\nSuperintendent, Government Kasturaba Gandhi
\nHospital for Women and Children, Madras-5, to
\nconduct medical termination of pregnancy of
\nthe petitioner and preserve foetus to enable
\nthe investigating agency to ask for DNA test,
\nwhich would be helpful in order to prove the
\ncase of rape alleged by the petitioner,
\nagainst the persons during the course of
\ntrial.\n<\/p>\n
 11. The conclusions are obvious that nobody can
\nbe compelled without his consent to submit to DNA
\ntest. A direction can be issued. Such direction
\nshould not be done in the ordinary course, in routine
\nor as a roving inquiry. A strong prima-facie case
\nshould be made out.\n<\/p>\n
 12. In the facts of the present case, at this
\nstage, the foetus is not apart of the body of the
\npetitioner. It had already been discharged. It is
\ntrue that the carrying of the foetus would depend upon
\nthe mother but the bond between them came to an end
\nwhen it was discharged. It can not thereafter be
\ntreated as a part of the mother, but was a unique
\norganism. When the foetus has already been discharged
\nfrom the body of the petitioner there is no question.
\nof compelling her to submit to any test. It is an
\norganise, which has been preserved and, therefore,
\nonce the organism is preserved, the petitioner can not
\nclaim that it should not be put to any test. The
\nquestion of compelling her to do any particular act
\ndoes not arise. This argument, therefore, so much
\nthought of by the learned counsel for the petitioner,
\nmust fail.\n<\/p>\n
 13. The main argument, as already referred to
\nabove, however, was that it affects the rights of life
\nof the petitioner, which includes the right of
\nprivacy. It would affect the confidentiality that the
\npetitioner has in this regard.\n<\/p>\n
 14. It is not in controversy that right of
\nprivacy is a part of right to life enshrined under
\nArticle 21 of the Constitution. This came up for
\nconsideration before the Supreme Court in the case of
\n  KHARAK SINGH v. STATE OF U.P. AND ORS.,<\/a>      . The Supreme court detailed the said
\nright in the following words :\n<\/p>\n
 We shall now proceed with the examination of
\nthe width, scope and content of the
\nexpression “personal liberty” in Article 21.
\nHaving regard to the terms of Article 19(1)(d),
\nwe must take it that that expression is used
\nas not to include the right to move about
\nrather of locomotion. The right to move
\nabout being excluded its narrowest
\ninterpretation would be that it comprehends
\nnothing more than freedom from confinement
\nwithin the bounds of a prison; in other
\nwords, freedom from arrest and detention,
\nfrom false imprisonment or wrongful
\nconfinement. We feel unable to hold that the
\nterm was intended to bear only this narrow
\ninterpretation but on the other hand consider
\nthat “personal liberty” is used in the
\nArticle as compendious term to include
\nwithin itself all the varieties of rights
\nwhich go to make up the “personal liberties”
\nof man other than those dealt with in the
\nseveral clauses of Article 19(1). In other
\nwords, while Article 19(1) deals with particular
\nspecies or attributes of that freedom,
\n“personal liberty” in Article 21 takes in and
\ncomprises the residue. We have already
\nextracted a passage from the judgment of
\nField J. Munn v. Illinois (1876) 94 US
\n113 at p. 142 where the learned Judge pointed
\nout that “life” in the 5th and 14th
\nAmendments of the U.S. Constitution
\ncorresponding to Article 21, means not merely the
\nright to the continuance of a person’s animal
\nexistence, but a right to the possession of
\neach of his organs – his arms and legs etc.
\nWe do not entertain any doubt that the word
\n“life” in Article 21 bears the same
\nsignification. Is then the word “personal
\nliberty” to be construed as excluding from
\nits purview an invasion on the part of the
\npolice of the sanctity of a man’s home and an
\nintrusion into his personal security and his
\nright to sleep which is the normal comfort
\nand a dire necessity for human existence even
\nas an animal? It might not be inappropriate
\nto refer here to the words of the preamble to
\nthe Constitution that it is designed to
\n“assure the dignity of the individual” and
\ntherefore of those chershed human values as
\nthe means of ensuring his full development
\nand evolution. We are referring to these
\nobjectives of the framers merely to drew
\nattention to the concepts underlying the
\nconstitution which would point to such vital
\nwords as “personal liberty” having to be
\nconstrued in a reasonable manner and to be
\nattributed that sense which would promote and
\nachieve those objectives and by no means to
\nstretch the meaning of the phrase to square
\nwith any pre-conceived notions or doctrine
\nconstitutional theories. Frankfurter, J.
\nobserved in Wolf v. Colorado, (1948)  338 US\n<\/p>\n
25.  <\/p>\n
 “The security of one’s privacy arbitrary
\nintrusion by the police …. is basic to
\na free society. It is therefore implicit in
\n‘the concept of ordered liberty’ and as such
\nenforceable against the States through the
\nDue Process Clause. The knock at the door,
\nwhether, by day or by night as a prelude to a
\nsearch, without authority of law but  solely
\non the authority of the police, did not need
\nthe commentary of recent history to be
\ncondemned as inconsistent with the conception
\nof human rights enshrined in the history and
\nthe basic constitutional documents of
\nEnglish-speaking peoples….. We have no
\nhesitation in saying that were a State
\naffirmatively to sanction such police
\nincursion into privacy it would run counter
\nto the guarantee of the Fourteenth
\nAmendment”.\n<\/p>\n
 Murphy, J. considered that such invasion was
\nagainst “the very essence of a scheme of
\nordered liberty”.\n<\/p>\n
 15. From that time onwards the said right has
\nmade deep in roots into the right to life.\n<\/p>\n
 16. It also came up for consideration with
\nrespect to freedom of press in the case of    RAJAGOPAL
\nALIAS R.R. GOPAL v. STATE OF T.N. AND ORS.,<\/a>
\n   , but the basic principles about right
\nof privacy to be fundamental right, came up for
\nconsideration.  Certain guidelines were provided and
\nthe Supreme Court held that once the matter becomes a
\nmatter of public record, the right of privacy no
\nlonger subsists. The two paragraphs in this regard
\nread :\n<\/p>\n
 (1) The right to privacy is implicit in the
\nright to life and liberty guaranteed to the
\ncitizens of this country by Article 21. It
\nis a “right to be let alone.” A citizen has
\na right to safeguard the privacy of his own,
\nhis family, marriage, procreation,
\nmotherhood, Child-bearing and education among
\nother matters. None can publish anything
\ncovering the above matters without his
\nconsent – whether truthful or otherwise and
\nwhether laudatory or critical. If he does
\nso, he would be violating the right to
\nprivacy of the person concerned and would be
\nliable in an action for damages. Position
\nmay, however, be different, if a person
\nvoluntarily thrusts himself into controversy
\nor voluntarily invites or raises a
\ncontroversy.\n<\/p>\n
 (2) The rule aforesaid is subject to the
\nexception, that any publication concerning
\nthe aforesaid aspects becomes unobjectionable
\nif such publication is based upon public
\nrecords including court records. This is for
\nthe reason that once a matter becomes a
\nmatter of public record, the right to privacy
\nno longer subsists and it becomes a
\nlegitimate subject for comment by press and
\nmedia among others. We are, however, of the
\nopinion that in the interests of decency
\n(Article 19(2)) an exception must be carved
\nout to this rule, viz, a female who is the
\nvictim of a sexual assault, kidnap, abduction
\nor a like offence should not further be
\nsubjected to the indignity of her name and
\nthe incident being publicised in
\npress\/media.”\n<\/p>\n
   (Emphasis added)  .\n<\/p>\n
 17. In the case of telephone tapping   (PEOPLE’S
\nUNION FOR CIVIL LIBERTIES v. UNION OF INDIA).<\/a>      once against the said right had been
\nrecognized.\n<\/p>\n
 18. Reference with advantage further can be made
\nto the Supreme Court in the case of    ‘X’ v.
\nHOSPITAL<\/a> ‘Z’    (1998) 8 SCC 296   it was concluded by the
\nSupreme Court that right of privacy can not be treated
\nto be an absolute right and in  paragraph 26, the
\nSupreme Court provided the following important
\nguidelines :\n<\/p>\n
 26. As one of the basic Human Rights, the
\nright of privacy is not treated as absolute
\nand is subject to such action as may be
\nlawfully taken for the prevention of crime or
\ndisorder or protection of health or morals or
\nprotection of rights and freedoms of others.\n<\/p>\n
 27. Right of privacy may, apart form
\ncontract, also arise out of a particular
\nspecific relationship which may be
\ncommercial, matrimonial, or even political.
\nAs already discussed above, doctor-patient
\nrelationship, though basically commercial,
\nis, professionally, a mater of confidence
\nand, therefore, doctors are morally and
\nethically bound to maintain confidentiality.
\nIn such a situation, public disclosure of
\neven true private facts may amount to an
\ninvasion of the right of privacy which may
\nsometimes lead to the clash of one person’s
\n“right to be let alone” with anther person’s
\nright to informed.\n<\/p>\n
 28. Disclosure of even true private facts
\nhas the tendency to disturb a person’s
\ntranquillity. It may generate many complexes
\nin him and may even lead to psychological
\nproblems. He may, thereafter, have a
\ndisturbed life all through. In the face of
\nthese potentialities, and as already held by
\nthis Court in its various decision referred
\nto above, the right of privacy is an
\nessential component of the right to life
\nenvisaged by Article 21. The right, however,
\nis not absolute and may be lawfully
\nrestricted for the prevention of crime,
\ndisorder or protection of health or morals or
\nprotection of rights and freedom of others.”\n<\/p>\n
 19. From the aforesaid the conclusion can
\nconveniently be drawn, viz,, that right of privacy
\nthough a fundamental right, forming part of right to
\nlife enshrined under Article 21 can not be taken to be
\nan absolute right. The right of privacy may arise
\nfrom contract and also may arise from a particular
\nspecific relationship including matrimonial but when
\nthe right to privacy has become a part of a public
\ndocument, in that event a person concerned, indeed can
\nnot insist that any such test would infringe his\/her
\nright of privacy.\n<\/p>\n
 20. The position herein can again be taken note
\nof. As already referred to above, the foetus is no
\nmore a part of the body of the petitioner. The
\npetitioner indeed has a right of privacy but it being
\nnot an absolute right, therefore, when a foetus has
\nbeen preserved in All India Institute of Medical
\nSciences, the petitioner, who has already discharged
\nthe same can not claim that it affects her right of
\nprivacy. Adultery has been alleged to be one of the
\ngrounds of divorce. At this state, the court is not
\nexpressing any opinion on merits of the matter, but
\nthe petitioner indeed can not resist the request of
\nrespondent No. 1. However, if the petitioner was being
\ncompelled to subject herself to blood test or
\notherwise, she indeed could raise a defense that she
\ncan not be compelled to be a witness against herself
\nin a criminal case or compelled to give evidence
\nagainst her own even in a civil case but the position
\nherein is different. The petitioner is not being
\ncompelled to do any such act. Something that she
\nherself has discharged, probably with her consent, is
\nclaimed to be subjected to DNA test. In that view of
\nthe matter, in the peculiar facts, it can not be
\ntermed that the petitioner has any right of privacy.\n<\/p>\n
 21. For these reasons, the application is
\nallowed. It is directed that at the cost of
\nrespondent No. 1, the Pathology Department of the All India
\nInstitute of Medical Sciences shall prepare a slide of
\nblood cells of respondent No. 1, It shall also call for
\nslides and blocks of the case relating to operation of
\nthe Petitioner (Registration No. 415330 – Gynea  III,
\nWard\/OPD-AB3\/15, admitted on 29.12.1994 and discharged
\non 4.1.1995. It is directed that DNA  test would be
\nconducted to ascertain if respondent No. 1 is the
\nfather of the foetus. It is sent to Central Forensic
\nScience Laboratory, 30, Gorachand Road, Calcutta (West
\nBengal).\n<\/p>\n
 22. I.A. stands disposed of.\n<\/p>\n
   Mat.1\/96   <\/p>\n
 List it for further proceedings on 12.2.2002.\n<\/p>\n
23. Order was pronounced on 20th December 2001. On it being mentioned the file has been taken up. At
\njoint request it is directed that if the matter has to
\nbe reported the names of the parties should not
\nappear. In case of the petitioner it should be
\nmentioned as Ms. X. In case of the respondent it
\nshould be mentioned as Mr. Z.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Alika Khosla vs Thomas Mathew And Anr. on 20 December, 2001 Equivalent citations: 2002 (62) DRJ 851 Author: V Aggarwal Bench: V Aggarwal 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-104426","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAlika Khosla vs Thomas Mathew And Anr. on 20 December, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/alika-khosla-vs-thomas-mathew-and-anr-on-20-december-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Alika Khosla vs Thomas Mathew And Anr. on 20 December, 2001 - 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