An appeal against the dismissal of a nullity of marriage petition filed under Section 24 of the Special Marriage Act. The High Court rejected the appellant's challenge to the Medical Board's report finding no impotency or structural defects, holding no reason to interfere.
Appeal dismissed; no order as to costs; Leave to Carry Rule sent down to Trial Court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
20.03.2023 SL No.7 Court No.8 (gc)
FAT 375 of 2014
Biswajit Das Vs.
Smt. Purnima Das @ Patra
Mr. Animesh Bhattacharya, Mr. Indu Bhusan Das,
…for the Appellant. Mr. Ujjal Ray,
…for the Respondent.
The appeal is arising out of a judgment and decree dated 29th April, 2014 in an application under Section 24 of the Special Marriage Act filed by the appellant with a prayer for decree of nullity of the marriage solemnized on 12.01.2006.
The learned Counsel for the appellant submits that for proper adjudication of the dispute, a medical board is required to be constituted for the purpose of ascertaining whether the respondent is eunuch or hermophodile, whether the respondent has been suffering from incurable impotency, whether the respondent had any structural defect in her female organ or whether she is incapable of cohabitation. The learned Counsel has also submitted that although there is an opinion by a Doctor of the Burdwan Medical College and Hospital, the said report is inconclusive. It is submitted that the Ultrasonography was done from a private diagnostic centre and the said report is manipulated.
2
It appears that on an application filed by the appellant, the Trial Court directed the Principal of Burdwan Medical College and Hospital to constitute a medical board. Pursuant to such direction, Dr. Rabindra Nath Karmakar examined the respondent as Chairman of the Board and he has filed a report that was marked as Exhibit-X. Dr. Karmakar has proved the contents of the said report. During his crossexamination he has stated that on 22nd September, 2010, the respondent concerned appeared before him for examination when he suggested for Ultrasonography of lower abdomen, uterus, and for examination of hormonal assey for FSH, LSH, Oestogen and LFT of T3, T4, free T4, T5H and Kanyotyping and those are suggested to form an opinion and after obtaining the suggestion he made his final report on 18th December, 2010. However, the report of investigations have not been made part of the report submitted by him. Dr. Karmakar and the members of the Medical Board on considerations of all the reports put their respective signatures on the report submitted before the trial judge. He also further stated that on 22nd September, 2010 the respondent was examined by a gynecologist who was the member of the board of which he was a chairman.
The learned Trial Judge in accepting the said report has made the following observation:-
3
“Now, it appears from Ext.X that respondent was examined on 22.9.10 in presence of advocates of both sides and signature of the respondent is appearing on the face of the report. Therefore, suggestion of the petitioner that lady herself was not present before the Medical Board or she caused her examination in personification has no room to rest.
It is admitted by the C.W.1 that he had no occasion to examine the lady and one gynecologist examined the lady concerned.
It appears from the record i.e. Ext. X that 4 points were formulated on which reports were reproduced as follows: 1) Whether respondent is eunuch or hermophodile (2) whether she has been suffering from incurable impotency (3) whether she has any structural defect in her female organ and (4) whether she is incapable of co-habitation or not?
It further appears from the report that in the genital part of the lady concerned valva is well developed as to the age. Her clitoris is normal. Hymel is semilunar in shape, old healed up tears at 5 O’clock and 7 O’clock position. Vagina allows two fingers easily, allows side to side and allows downward movements, cerviz Nulliparous, formices – clear and depth is adequate. Uterus is palpable normal in bimanual vagina evaculation, mobile and anteverted, and vagina shows white mucold discharge.
It further appears from the record that impression of her Ultrasonography was normal study of uterus, ovaries and it appears that thyroid function was normal in range and after taking all these things into consideration he opined that there is nothing to suggest that subject is a eunuch and harmofodile both anatomically as well as available results of investigation.
4
He further opined that there is nothing to suggest that subject is suffering from impotency not to speak of incurable impotency, and regarding the third point whether subject has any structural defect of her genital organ, it is opined that no structural defect or abnormality could have been detected and regarding the 4th point whether she is incapable of cohabitation, it is opined that there is nothing to suggest that subject is incapable of cohabitation.
Therefore, it is clear from the above report that nothing abnormality either in structure or in function is detected so far her genital organ is concerned. ”
The learned Counsel for the appellant could not demonstrate that the said report is unreliable or should not be accepted. The medical report has answered all the queries raised in clear terms. The appellant could not demonstrate that the procedure conducted for the purpose of answering queries were defective or all the relevant factors were not taken into consideration in deciding the points that were formulated and answered by the Medical Board. In view of clear finding of the medical board that there was no genital defect of the respondent and that she was not suffering from defect or any disease which may incapacitate her for cohabitation, the allegation of non-consummation of marriage due to impotency or incapable of the wife does not stand. In any event there was no pleading to the effect that non-consummation was owing to the impotency of the wife.
5
Under such circumstances, we do not find any reason to interfere with the impugned judgment and order.
The appeal fails.
Accordingly, the appeal being FAT 375 of 2014 stands dismissed.
However, there shall be no order as to costs.
L.C.R. shall be sent down to the Trial Court.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Uday Kumar, J.)
(Soumen Sen, J.)
2 issues framed by the court
Whether the High Court should interfere with the Trial Court's dismissal of the prayer for nullity of marriage despite the appellant's claim of inconclusive medical evidence.
Whether the medical board report conclusively established that the respondent was competent for cohabitation and did not suffer from incurable impotency or structural defects.
1 provisions across 1 enactments
Biswajit Das
Smt. Purnima Das
Uday Kumar
Soumen Sen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
