Disposed

Sri Bhaskar N D v. Smt Anitha Lakshmi B H

Karnataka HC10 Sept 2024WP/4303/2023

Case brief

AI extract

What is this about?

A husband seeking annulment for non-consummation sought a direction compelling his wife to undergo medical examination. The High Court upheld the Family Court's dismissal: such an order requires a strong prima facie case and evidence first; the application was premature.

What did the court decide?

Writ petition disposed of with liberty to file an appropriate application at an appropriate stage; interim applications closed.

Sri Bhaskar N D Vs Smt Anitha Lakshmi B H — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:36842 WP No. 4303 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 4303 OF 2023 (GM-FC)

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BETWEEN:

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SRI.BHASKAR N.D. S/O LATE N.R.DASAPPA, AGED ABOUT 45 YEARS, R/AT NO.148,2^ND FLOOR, MAHADESHWARA NILAYA, 1^ST MAIN,MAGADI ROAD, VISWANEEDAM POST, BENGALURU-560091

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…PETITIONER

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(BY SRI. NATARAJUT.,ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SMT. ANITHA LAKSHMI B.H. W/O BHASKAR N.D., D/O HANUMANNA, AGED ABOUT 37 YEARS, R/AT NO.409,PAVANA NILAYA, 4^TH CROSS, 1^ST BLOCK,PEENYA, BENGALURU-560098

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(BY SRI. VENKATESH PRASAD R.,ADVOCATE)

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…RESPONDENT

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE ORDER DATED 02/02/2023 ON I.A.NO.4 UNDER SEC.151 OF CPC R/W.SEC.12 OF HINDU MARRIAGE ACT PASSED BY THE V ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BENGALURU IN M.C.NO. 56/2016 VIDE ANNEXURE-E, CONSEQUENTLY ALLOW THE I.A.NO.4

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NC: 2024:KHC:36842 WP No. 4303 of 2023

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DATED 24/11/2016 UNDER SEC.151 OF CPC R/W SEC.12 OF HINDU MARRIAGE ACT VIDE ANNEXURE-C.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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Aggrieved by the order passed in I.A.No.4 in M.C.No.56/2016 dated 02.02.2023 by the V Addl. Principal Judge, Family Court, Bengaluru, the husband is before this Court.

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The parties are referred to as husband and wife for the sake of convenience.

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The husband had filed MC.No.56/2016 seeking to declare the marriage as nullity as the wife is not a competent person to consummate the marriage. It is the case that the marriage had taken place on 11.06.2015 and after the marriage, the wife had come to the house of the husband and stayed for one day and immediately left to her parent’s house. It is the case of the husband that the wife had not shown any interest or affection towards the husband and the marriage is

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not consummated. Within a few days, the husband searched a rented house and informed the wife to join the company of the husband. The wife and her parents put forth unnecessary conditions that the aged mother of the husband should not be with them and the relatives of the husband should not come to the rented premises so on so forth as a condition to join the matrimonial home. The wife had not joined and whenever he approaches the wife by going to her parent’s house, she has not expressed any kind of interest in him and even not allowed him to come near to her. The husband had made all his best efforts. It is his case that the wife was calling him during his office hours and abusing for the unknown reasons. It is stated that on 01.11.2015 there was mediation held at J.P.Nagar at the house of relative of the husband where the parents of the wife agreed to send her to the house of the husband and it has also decided to perform the nuptials on 20.11.2015. They imposed a condition that the relatives of the husband should not attend the said function. A small function was held on 20.11.2015. According to him, the marriage could not be consummated. He also stated that on 05.12.2015, he had taken her to a gynecologist Dr. Latha at Pragathi Clinic which is

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NC: 2024:KHC:36842 WP No. 4303 of 2023

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situated at Chikkallasandra, Bangalore for consultation and even there she has also not permitted the doctor to test her and make preliminary enquiries. The doctor expressed that some counselling is necessary and detailed examination is required from the reputed doctors to test the maturity or otherwise health condition of the wife. It is also the case of the husband that the wife had developed a kind of insecure feeling and has become very suspicious and tried to test the patience of the husband in different ways. She was talking a lot about the character of the husband, defaming his self respect. On 22.12.2015, the wife along with her parents came to the house of the husband and started quarrelling with him for unknown reasons and the father of the wife also threatened him with the dire consequences. On that day the husband went to his house and found the same is locked and the wife had taken away all the household items, gold ring, silk sarees and other items to her parent’s house. It is stated that on these grounds as there was no other alternative, he had issued a notice on 26.12.2015 calling upon the wife to give consent for dissolving the marriage. After receiving the notice, she lodged a complaint on

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01.01.2016. The husband has come up with the present petition seeking to declare the marriage as nullity.

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The wife had filed her objections to this petition and she had denied the allegations made against her. According to the wife, the marriage is consummated. It is stated that the husband had forcibly by misreading and manhandling the wife without any intimation to her parents or to anyone had taken to Dr. Latha, who is not a gynecologist, but she is just a physician without any specialization and the doctor tried to make physical examination against the wishes of the wife as regards to her bodily composition and her femininity and the said doctor forcibly conducted the examinations and had declared that the wife is hale and healthy and has no health issues and her femininity and bodily composition is normal as like any other woman and the said doctor had never prescribed any medicine or counselling or further examination. In view of the same, it demonstrates the sadistic nature and character of the husband and along with that she had taken a stand about the consummation of the marriage and that the petition has to be dismissed. The husband on 24.11.2016 had filed I.A.No.4 seeking a direction to the wife to appear before the competent

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doctor/Gynecologist for medical examination about her physical, psychological capability in consummation of marriage and furnish the report to the Court.

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The Trial Court, by order impugned, had dismissed the application. The Court while dismissing the application, had relied on a judgment passed of this Court in case of Revamma Vs. Shanthappa¹ and observed that in a case where a party alleges that a person is impotent or suffering from other such incurable disease, it is for a person making such an allegation to prove the same. A party cannot be compelled to undergo medical examination. It also observed that there is no provision under the Hindu Marriage Act or the rules framed thereunder, or in the Code of Civil Procedure or in the Indian Evidence Act or any other law which would show any person in the Court to compel any party to undergo medical examination and the Trial Court had also considered the judgment of the High Court of Andhra Pradesh in case of Pulavarthi Sriramamurthy Vs. Lakshmikanthamma² . Relying on these judgments, the Trial Court had observed that the marriage was organized on 10.06.2015 and according to the husband, nuptial ceremony

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1 AIR 1972 KANT 157

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2 AIR 2001 AP 502

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was arranged in the month of November and at para No.8 of his pleadings, he had taken a stand that during the stay of the wife in his residence, on 05.12.2015 he has taken the wife to the gynecologist. He had not produced any document to that effect to show that any advice given to the wife. Dr.Latha is a gynecologist, but the husband himself had taken the wife to the hospital. Therefore, question of issuance of direction to the wife for medical examination do not arise. When the husband has approached the Court seeking the declaration that the marriage is a nullity he has to prove the facts. Therefore, without the evidence of both the parties, application filed by the husband is not maintainable and accordingly, dismissed the application. Aggrieved thereby the present Writ Petition is filed.

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Learned counsel for the petitioner submits that the marriage could not be consummated as the wife is impotent. He has no other way to prove the case except sending the wife for medical examination. Unless and until she is examined and a report is placed before the Court, it is difficult for the husband to prove his case. The Trial Court without considering all these aspects had dismissed the petition. He had relied on the judgement of Hon’ble Apex Court in case of Sharda Vs.

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Dharmpal³ . He had relied on para Nos.76, 78 and 79, which reads thus,

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76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature

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32003 4 SCC 493

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where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.

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78. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order.

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79. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession.

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He had also relied on the other judgements of the other High Courts which were passed taking into consideration. The

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law laid down in case of Sharda vs Dharampal stated supra. Relying on the said judgment, he submits that the finding of the Court is contrary to the settle law and sending her for medical examination is not violative of Article 21 of the Constitution of India and the Court had failed to appreciate the contentions put forth on the legal position as envisaged by the Hon’ble Apex Court. He submits that the judgments that are relied on by the Trial Court are all considered by the Hon’ble Apex Court in Sharda vs Dharmapal 's case stated supra and the Trial Court ought to have considered the said judgment.

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Learned counsel appearing to the respondent/wife submits that the marriage had taken place on 11.06.2015 and the nuptial ceremony was held on 20.11.2015 and the marriage is consummated. When a notice was issued on 26.12.2015, they have issued a reply notice on 07.01.2016. Even before the reply is sent, they have filed the petition on 04.01.2016. It is the case of the wife that the husband wanted a divorce and as they cannot move an application for divorce before one year from the date of marriage. He has come up with this application. Learned counsel submits that according to the husband, he had taken the wife to a doctor by name Dr. Latha,

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a gynecologist and the wife has been subjected to the examination. In the evidence, he could examine the said doctor and he can also place before the Court the report of the said doctor as even the wife is admitting in her pleadings that the husband had taken her to the doctor. Learned counsel submits that without making any effort or without even discharging the burden on him, he cannot file an application straightaway subjecting the respondent to medical examination. It is submitted that the judgment of the Hon’ble Apex Court which he was relying on the case of Sharda Vs. Dharmpal stated supra in fact, supports the case of the wife and the Trial Court had rightly dismissed the petition and no grounds are made out seeking interference with the well considered order passed by the Trial Court.

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Having heard the learned counsels on either side, perused the material on record. The marriage had taken place on 11.06.2015 and he had filed the M.C. on 04.01.2016. According to the husband, the marriage is not consummated as the wife is impotent. He has made all his efforts and it is also his case that he has taken the wife to a gynecologist by name Dr. Latha. Even the same was accepted and affirmed by the

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wife in her objections stating that she has been taken to the doctor and according to her, the doctor, after examination has felt that by all means the wife is normal. The husband had not adduced any other evidence of the family members or the relatives as he is referring in his petition about the mediation that is done. Now, unless and until he makes out a prima facie case with the available evidence that the wife is reluctant and in that regard the mediations were also done and having no other go, he had to come before the Court with this petition seeking nullity of the marriage. Straightaway he cannot come up with an application stating that the wife has to be subjected to the medical examination. The Hon’ble Apex Court in case of

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Sharda Vs. Dharmpal ’s case stated supra had considered the rights of a party and the right to privacy as enshrined under Article 21 and how it has to be balanced with the right of a person to defend himself. The Court had observed that when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as an absolute right. What is emphasized is that some limitations on this right have to be

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imposed and particularly where two competing interests clash. In matters of the aforesaid nature where the legislation has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of one party, there the Hon’ble Apex Court has held that there should be a balance between the right to privacy and at the same time, the right of the other person to be adequately defend himself. While laying such a ratio, the Hon’ble Apex Court has also categorically observed that in those cases, the Court shall not order for roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion and such discretion would be subject to the supervisory jurisdiction of the High Court in terms of Section 115 of CPC and Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order. For applying the ratio laid down in the judgment of the Hon’ble Apex Court in Sharda Vs. Dharmpal ’s case stated supra. The first and foremost thing is the party who seeks such a relief should make out a prima facie case. It is the

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case of the petitioner that whatever the case he has pleaded in the petition is a prima facie case. In the petition itself, he has stated about the mediation that had taken place. He had taken the wife to a doctor. He should prove his case by adducing necessary evidence and he should make out prima facie case. Thereafter, if the medical examination is required and if the Court comes to the conclusion that unless and until a medical examination is conducted the husband would not be able to prove his case and having satisfied that there is a prima facie case, then at that stage either the application or the request that is made by the husband for examination can be considered. But it cannot be at a threshold without even choosing any evidence or without even making a strong prima facie case where the Court will be compelled to ask the wife to subject herself to the examination. In the considered opinion of this Court, the stage at which the application is filed by the husband is not appropriate and he could not make out a strong prima facie case which compel the Court to pass an order subjecting the wife to medical examination. In that view of the matter, this court finds no reason to interfere with the

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considered order of the Trial Court. Hence, this Court is passing the following:

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ORDER

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i. Accordingly, the Writ Petition is disposed off by giving liberty to the petitioner to file an appropriate application at an appropriate stage.

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ii. All I.As., in the Writ Petition, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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BN List No.: 1 Sl No.: 6

Sri Bhaskar N D v. Smt Anitha Lakshmi B H

Case brief

What is this about?

What did the court decide?

Sri Bhaskar N D v. Smt Anitha Lakshmi B H

Case brief

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