Thaindian News

New Delhi, Sep 23 (IANS) The Delhi High Court Friday said Congress leader N.D. Tiwari cannot be “physically compelled” to give DNA sample in a paternity suit by a man claiming to be his biological son, but his refusal is “malicious and unjustified”.

Justice Gita Mittal said: “The defendant (N.D. Tiwari) cannot be physically compelled or be physically confined for submitting a blood sample for DNA profiling to implement the judgment passed on Dec 23, 2010.”

“It is further held that Tiwari’s refusal to submit the blood sample is willful, malicious, unreasonable and unjustified,” she said.

Justice Mittal said the court would “construe the weight to be attached to and the impact of his (Tiwari) refusal while evaluating the evidence produced by the parties, which then may be treated as corroborative evidence, leading to the presumption that the result of the DNA profiling of the defendant’s blood sample would have supported the plaintiff’s claim”.

During the course of arguments earlier, Tiwari’s counsel cited several Supreme Court judgments to argue that his client “can’t be compelled to give blood sample or undergo any other test like narco-analysis”.

He also submitted that Tiwari could not be pressured into giving even his nail, hair and skin samples for DNA profiling.

Counsel for claimant Rohit Shekhar, 31, however, urged the court to ensure the 85-year-old leader complied with the directive of a single-judge bench of the high court, later upheld by its division bench and, subsequently, by the Supreme Court.

The court in its over 100-page order observed that even if this court was to conclude that it was permissible for Tiwari to be compulsory tested, the enforceability of such order is doubtful.

“Such forcible drawing of the sample would necessitate physically confining the defendant, producing him before medical experts and forcibly constraining him for the purpose of drawing sample,” the court said.

“Such a course would be unwarranted intrusion of the rights of the defendant under Article 21 of the constitution and is completely impermissible,” said the court while rejecting Shekhar’s plea that Tiwari be physically confined to give a blood sample.

Earlier, Justice Mittal also pulled up Tiwari for refusing to either admit or deny, through an affidavit, the authenticity of more than 100 of his photographs with Shekhar and his mother, Ujjwala Sharma, submitted to the court.

Tiwari made light of the photographs, saying he was a public figure who got photographed without prior notice and he could not be expected to recall all the pictures.

Tiwari had filed his application, opposing the order of the court’s joint registrar to appear in the high court dispensary June 1 to give his blood sample for the DNA test.

The court said that Tiwari is obliged to comply with a court order to undergo parentage testing.

“The conscious and emphatic refusal clearly suggests that Tiwari does not wish to run the risk of providing the plaintiff with evidence that would establish his case and is malafide. The refusal of the respondent displays no good reason but bad faith,” said the court.

“The attitude of the defendant as manifested in the present application and on the affidavit filed by him in July is certainly not a reasonable attitude. I, therefore, find that there is no justification or valid reason at all for the defendant not to provide the sample directed by this court to submit to the DNA testing,” she said.

“It is held that the refusal of Tiwari constitutes wilful and wrongful refusal to comply with valid court order,” said Justice Mittal.