Setting aside a single judge bench's Sept 2011 order that 86-year-old Tiwari cannot be compelled to give his blood sample, a bench of Acting Chief Justice AK Sikri and Justice Rajiv Sahai Endlaw said that police force can also be used if he continues to defy orders to undergo DNA test.
Allowing the plea of 32-year-old Rohit Shekhar, the bench disagreed with the single judge that the court can draw an adverse inference if Tiwari refused to give his blood sample, saying, "Adverse inference cannot be a substitute to the enforceability of a court direction for DNA test".
Adverse inference from non-compliance cannot be a substitute to the enforceability of a direction for DNA testing. "The valuable right of the appellant (Shekhar) under the said direction to prove his paternity through DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak adverse inference," the bench said.
It further said police force can also used to compel Tiwari to give his blood sample. With "the respondent one (Tiwari) continuing to defy the order, the single judge shall be entitled to take police assistance and use of reasonable force for compliance thereof," the bench said.
The bench passed the orders while hearing Shekhar's plea challenging the single judge's order which had stated that Tiwari cannot be compelled but an adverse inference can be draw from his repeated refusal to give his blood sample.
The court had on Feb 28 reserved its order on Shekhar's plea which had said the single judge had failed to deal with Tiwari's "dismissive conduct" against its previous order to give his blood sample to decide the paternity suit.
Shekhar claimed that the single judge had failed to consider that if Tiwari is not compelled to submit his blood sample, it would be difficult for him to get justice and prove himself as the biological son of the Congress veteran, who is a former governor of Andhra Pradesh and former chief minister Uttar Pradesh and Uttarakhand.
Justice Gita Mittal had on Sept 23 last year held, "Tiwari cannot be physically compelled or confined for submitting his blood sample for DNA profiling to implement the high court's December 2010 judgement."
This order had come on Tiwari's plea challenging the Dec 23, 2010 order of the high court which had asked him to give his blood sample for DNA test.
Tiwari had on Jun 1, 2011 refused to appear in the high court dispensary to give his blood sample to ascertain Rohit's claim of being his biological son, saying he cannot be forced to do so.
Refuting Rohit's claim, Tiwari had challenged the high court's single judge order before its division bench which too had rejected his appeal, following which he had gone in for an appeal in the apex court on Feb 28, last year.
But, the apex court had on Mar 14, 2011 refused to stay the high court's order for his DNA test. After the apex court order and the high court subsequently asking him to appear before a doctor at a dispensary in its premises to give his blood sample, Tiwari had started another round of litigation, contending that he cannot be physically forced to give his blood sample.