The High Court dismissed the wife's revision challenging the Senior Civil Judge's order directing her medical examination. The Court upheld the impugned order, finding a strong prima facie case based on allegations of non-consummation and unfit condition for conjugal life, citing Sharda v. Dharmapatra.
Revision petition dismissed.
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.
THE HON’BLE SRI JUSTICE G.CHANDRAIAH
C.R.P.NO.2941 OF 2009
O R D E R
Heard both the counsel.
2. The petitioner and the respondent are wife and husband. The respondent filed O.P.No.13/2007 on the file of Senior Civil Judge, Kavali under Section 13(1) (ia) and (i-b) of the Hindu Marriage Act, 1955 seeking divorce. After the closure of evidence on the side of the respondent, he filed the present I.A.No.13/2009 under Section 151 C.P.C. seeking the court to direct the petitioner-wife to submit herself for medical examination by a qualified gynecologist. By the impugned order dated 17.4.2009, the court below allowed the application. Aggrieved by the same, the present revision is filed by the wife.
3. The learned counsel appearing for the petitioner – wife contended that that the grounds for seeking divorce under Section 13 (1) (i-a) and (i-b) are cruelty and desertion and in the present I.A., the husband sought a direction to send the wife to gynecologist to examine and report whether she can beget children. He contended that not begetting children, is not a ground for seeking divorce under Section 13 (1) (i-a) (i-b) of the Act and hence allowing the I.A. filed by the husband, is erroneous and is liable to be set aside. He contended that earlier the husband filed O.P.No.61/2005 seeing divorce and the same ended in compromise before the Lok Adalat dated 19.8.2006 and both the parties agreed to lead marital life. He stated that if the petitioner is not fit for conjugal life and unable to bet children, the husband would not have agreed to live together. The court below has not considered these circumstances before allowing the I.A. and hence the impugned order is liable to be set aside. He contended that the judgment relied on by the court below reported in
PADALA KANIKI REDDY v. PADALA SRIDEV I[1] is not applicable to the facts of the present case. With these contentions, he sought to set aside the impugned order and allow the revision.
4. The learned counsel for the respondent supporting the impugned order, sought for dismissal of the revision.
5. From the material available on record, it could be seen that the husband
filed O.P.No.13/2007 seeking dissolution of the marriage and he alleged inter alia that their marriage was not consummated and in the earlier O.P.No.61/2005 though the matter was compromised and the parties agreed to live together, the wife did not choose to join him and he also alleged that he came to know that the petitioner is unfit for conjugal life. Therefore, the husband has taken a specific stand and in order to prove the same, he filed the present petition. Whether the grounds taken by the petitioner would fall within Section 13(1)(i-a) and (i-b) of the Act has to be considered during the trial. The court has to satisfy whether there is strong prima facie case to order for medical examination.
6. The Apex Court in the decision reported in SHARDA v. DHARMPA L[2] while considering a divorce proceedings under Section 13 of the Hindu Marriage Act on the ground of alleged mental illness, held that court can order medical examination of a party either suo motu or at the instance of a party. The relevant conclusions of the Apex Court are as under:
“85. To sum up, our conclusions are-
1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.
7. Following the above judgment of the Apex Court, another learned single Judge of this court in PADALA KANIKI REDDY v. PADALA SERIDEVI (1 supra) held that court has power to order a person to undergo medical test, if the applicant has a strong prima facie case.
8. From the above judgment of the Apex Court and this court it is clear that a matrimonial court has power to direct a person to undergo medical examination and that it would not amount to violation of personal liberty guaranteed under Article 21 of the Constitution of India and the only criteria for ordering medial examination of a person is that the applicant shall have strong prima facie case and there shall be sufficient material before the court.
9. In the present case, the marriage between the parties was performed on 22.8.2002 and the fact on record is that there are no issues. The case of the husband, apart from other allegations, is that their marriage is not consummated and that his wife is unfit for leading conjugal life and though there was earlier a compromise decree passed by the Lok Adalat, Kavali in O.P.No.61/2005 dated 19.8.2006, whereunder the parties agreed to live together in order to lead a martial life, the wife did not choose to join him. The wife has denied the above averments of the husband. However, these facts have to be decided eventually during the trial. But having regard to the facts and circumstances, as the marriage was performed about seven years back and as there were no issues and the vehement contention of the husband is that the marriage was not consummated because of the noncooperation of the wife, I am of the view that the husband has strong prima facie case to seek the court to order the wife to subject herself to the medical examination.
10. For the foregoing reasons, I do not find any justification to interfere with the impugned order and the revision is devoid of any merits and the same is liable to be dismissed and accordingly dismissed.
11. It is made clear that the court below shall dispose of the main O.P. based on the evidence available on record and in accordance with law, not being influenced by any observation or finding, if any, made in this order.
12. No order as to costs.
AVS ----------------------------------11—07—2011
[1] 2006(5) ALT 762
[2] AIR 2003 SC 3450
2 issues framed by the court
Whether the High Court could quash the order allowing the husband's application for a medical examination of the wife alleging inability to consummate marriage.
Whether there was a strong prima facie case to order the wife to undergo medical examination despite the allegation not being a statutory ground for divorce.
Colour shows how this judgement treated each authority
Padala Kaniki Reddy v. Padala SrideviFollowed¶17
2006(5) ALT 762
Sharda v. DharmapatraFollowed¶11
AIR 2003 SC 3450 · Who else cites this
2 provisions across 2 enactments
Wife
Husband
G. Chandraiah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
