Divorce on impotency and Cruelty

Andhra High Court
THE HONOURABLE SRI JUSTICE P.S.NARAYANA          
C.R.P. No.385 of 2006

24-07-2006

Padala Kaniki Reddy Vs.Padala Sridevi

Counsel for the Petitioner: Sri A. Veera Swamy
Counsel for the Respondent: Sri Kunareddy Anji Reddy.

:ORDER: 

        Heard Sri A. Veera Swamy, the learned counsel representing the revision
petitioner and Sri Kunareddy Anji Reddy, the learned counsel representing the
respondent.
2.      This revision petition is filed as against an order dated
23-09-2005 made in I.A.No.944 of 2005 in O.P.No.104 of 2001 on the file of the
Senior Civil Judge, Tanuku. The revision petitioner is the husband of the
respondent.
3.      This is a matrimonial dispute.  For the purpose of convenience, the
parties herein after would be referred to as wife and husband only.
4.      The wife filed O.P.No.104 of 2001 on the file of the Senior Civil Judge,
Tanuku praying for dissolution of marriage on the grounds of husband being of
unsound mind and sexually impotent and also made several elaborate allegations.
The husband, who is the respondent in the main O.P. denied those allegations.  A
specific stand was taken in para 13 of the counter that she had some trouble in
connection with her uterus even before the marriage and in the said context, she
cannot conceive and beget children and she was treated in England and finally
various attempts to use the sperm of respondent proved futile in view of the
condition of her uterus. It is needless to say that as already referred to
supra, the O.P. was filed by the wife for dissolution of marriage on the grounds
of insanity, impotency and also cruelty.  The allegations made in the O.P. and
the counter allegations need not be dealt with at length at this interlocutory
stage.
5.      In the said O.P., the husband filed I.A.No.944 of 2005 to direct the wife
to undergo medical examination by a qualified lady Gynecologist of Government
Institutional Hospital so as to substantiate the fact whether she enjoyed the
conjugal life and she is capable of begetting children considering the condition
of her virginity. The parties had led the matrimonial life for more than a
decade. It is stated that during the cross-examination, the wife admitted that
she was willing to undergo medical examination. The specific stand taken by the
husband in I.A.No.944 of 2005 is that she was unable to conceive due to the
condition of her uterus and the doctor in England also opined the same after
examining her. The same was resisted by the wife by making the counter
allegations and assert that she is sexually potent, whereas, the husband is
impotent. She had taken a specific stand that she cannot be directed to undergo
such test since it would amount to violation of the right to privacy and
personal liberty. Moreover, the virginity test cannot constitute the sole basis
to prove consummation of marriage. Hence, she prayed for dismissal of the
application. The learned Judge recorded certain reasons at paras 6,7 and 8 and
ultimately dismissed the said application.  Aggrieved by the same, the present
Civil Revision Petition is preferred.

6.      Both the counsel narrated several factual details, addressed the
historical background of this litigation and also certain other civil
litigations said to be pending between the parties.
7.      The wife filed O.P.No.104 of 2001 on the file of the Senior Civil Judge,
Tanuku praying for dissolution of marriage on the grounds already specified
supra.  The husband is contesting the same. It is pertinent to note that the
wife is making serious allegations of insanity, impotency and also cruelty as
against the husband.  The husband is denying those allegations and further, he
is taking a specific stand from the earliest point of time that the wife is
unable to conceive in view of the defective uterus. In relation to the grounds
either impotency or insanity, the wife had not taken any appropriate steps
praying for medical examination of the husband. This Court is not concerned with
the said question in the present context.  It is true that the wife approached
the Court praying for dissolution of marriage on certain grounds and if the wife
is unable to establish the same, she may not be entitled to any relief at all.
That may not be the end of the matter.  While appreciating a matrimonial
dispute, the stand taken by the husband in the counter also may have to be taken
into consideration. At the earliest point of time, the husband had taken a
specific stand that because of the defective uterus, the wife is unable to
conceive. Further, the specific stand taken by the wife on the ground of
impotency is a baseless allegation and the defect lies with the wife only.
Apart from the other allegations, the main question in controversy between the
parties revolves around, the question whether the wife is able to conceive or
not, whether the ground of defective uterus raised by the husband in his counter
and also in the affidavit filed in support of the application is true or not,
these aspects cannot be decided by mere adduction of oral evidence by the
parties. It is needless to say that one party would assert a particular fact and
the other party would deny the same. In the light of this background, the
husband appears to have moved this application praying for a direction to the
wife to undergo medical examination by a qualified lady Gynecologist in
Government Institutional Hospital to substantiate whether she had enjoyed
conjugal life and whether she is capable of begetting children or not and in
relation to the condition of her virginity.
8.      In G. VENKATANARAYANA v. KURUPATI LAXMI DEVI1, the learned Judge of this       
Court, Justice Rama Rao, observed at            para 6 as hereunder;
        The human body is the most ancient apparatus and defied probe and
vulnerability to diagnosis and treatment of ailments for long time. The human
intellect generated by the human body unraveled the mysteries and complications
in the human body and the process of experimentation for several years,
dissection of anatomy scientific analysis and modern scientific approach
contributed to discovery of diverse methods of diagnosis of deficiencies and
ailments and treatment of the same.  There is a gradual change over from oral
diagnosis and treatment to discovery of deficiencies precisely by scientific
data and effective and expeditious treatment by prescription of medicines and
surgery. The transplantation of heart and other parts of the body, scanning the
body to detect deficiencies and malfunctioning, invasive diagnosis and treatment
yielded dividends of minimizing wear and tear of the body and thereby improving
the longevity and quality of life though the avoidance of final exit is not in
sight.  The close affinity between law and medicine is demonstrated by medical
jurisprudence.  The physician as an expert witness has become a common and 
welcome feature in Courts ranging from opinions on nature and degree of injuries
to the proximate cause of death in criminal cases, assessment of insanity and
several other situations. When there is a dispute between the wife and husband
about the potency of either of them their evidence reflected by truth
constitutes the cream of evidence and the marshalling of adventitious or
extraneous circumstances afford a poor substitute. In the event of diametrically
opposite and rival versions of the parties the recourse to medical test resolves
the riddle and the medical opinion assumes the acceptable piece of evidence. In
the present atmosphere of looking forward to progeny of artificial insemination,
scientific probe by virginity tests and the knowledge of pre-delivery sex the
depreciation of the importance of determination of potency by medical test does
not bear the impress of realistic approach.

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In BIRENDRA KUMAR v. HEMALATA BISWAS2 it was held that in a  suit by the husband      
to declare the marriage void under the Indian Divorce Act on the ground of
impotency and also another ground of consent obtaining by fraud it was also
alleged that the wife was suffering from incurable syphilis.  After reference to
the evidence it was concluded that full investigation of the case was not done
and the case was remanded for trial.  While giving directions for investigation
of fraud and consideration of impotency, the Division Bench added that it is
necessary that there should be a proper medical examination of the person of the
respondent. In GEORGE SWAMIDOSS JOSEPH v. SUNDARI EDWARD3, the learned Judge             
Justice Ramaswamy,  of the Madras High Court observed as hereunder; 
        While the confessions or admissions of either party are admissible to
prove his or her impotency, they are not generally regarded sufficient unless
corroborated. That a Court having jurisdiction to pronounce decree of nullity on
the ground of impotency has power also to direct a proper medical and surgical
examination of the person of the parties whenever this is necessary, is well
settled in England.
        The learned Judge also observed that in this country it may be held that
by necessary implication the Court is armed with all the usual powers which in
England are deemed requisite to ascertain the fact of incapacity and without
which it would be impossible for any Court to exercise such a jurisdiction in
ordering the examination, and do so subject to such conditions as will afford
protection from injuries to natural delicacy and sensibilities.

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In RANGANATHAN CHETTIAR v. LAKSHMI ACHI4 it was held that there is no statutory    
provision for compelling a party to be examined by a doctor and apart from cases
of lunacy there is no provision enabling the medical examination.  It was
further held that the Court may draw an adverse inference against the party who
refused to be examined by himself or herself. In BIPINCHANDRA v. MADHURIBEN5 it  
was observed that a compulsion to undergo medical examination is certainly an
interference with the personal liberty of a citizen and such personal liberty
could only be interfered with under the provisions of any penal enactment or in
the exercise of any other coercive process vested in the Court under the law. In
REVAMMA v. SANTHAPPA6) while dealing with an application for issuance of a  
direction to the wife to be examined by the doctor in relation to impotency, it
was held by the learned Judge Justice Datar as hereunder;
        In a case where a party alleges that a person is impotent or suffering
from other such incurable disease, it is for the person making such an
allegation to prove the same.  A party cannot be compelled to undergo medical
examination.

In SREERAMAMURTHY v. LAKSHMIKANTHAM7  where a suit was filed by the plaintiff      
for partition and recovery of 1/3rd share on the ground that her husband died,
divided from his brothers with some alternative reliefs and further, it was
contended that the plaintiff gave birth to a child subsequent to her husbands
death and being unchaste is not entitled to recover any maintenance and on the
application filed for medical examination whether the first respondent gave
birth to a child at any time, the Court of first instance held that she cannot
be compelled to undergo medical examination and in that context, Umamaheswaram,  
J held that it is impossible to ascertain after a lapse of four years whether
the respondent was enceinte and had given birth to a child and it was further
observed that Section 151 of the Code of Civil Procedure cannot be invoked in
the circumstances and the personal liberty is infringed by compulsion of medical
examination.
9.      In P.A.ANBU ANANDAN v. D. SIVAKUMARI8  while dealing with a case of    
restitution of conjugal rights under Section 9 of the Hindu Marriage Act and
rejection of an application for medical examination of wife prayed for by the
husband for finding out whether she remained virgin or not, it was held that the
rejection of application was held to be proper in the light of an Article 21 of
the Constitution of India.  In ARUN KUMAR v. SUDHANSU BALA9 the Special Bench of    
the Orissa High Court held that when there are accusations and counter
accusations of impotency, some corroborative evidence would be essential and in
such cases, medical evidence would be valuable.  In GOUTAM KUNDU v. STATE OF     
WEST BENGAL10  the Apex Court, while dealing with a case of legitimacy of a
third born during the marriage held that no one can be compelled to give sample
of blood for analysis.  In   M. VENKATACHALAPATHY v. SAROJA ALIAS THANGAMMAL11          
Justice V. Ratnam held that it is settled law that a person cannot be directed
to be examined medically against her wish. In KRISHNAMURTHI AYYAR v.    
GOVINDASWAMI PILLAI12 Justice M. Natesan held that even in an election petition 
there is no warrant in the procedure now obtaining in the Civil Courts under the
Code for an order for compulsory medical examination of a party against the wish
of the party.
10.     In SHANTI DEVI v. RAM NATH13, Justice Prem Chand Pandit held that when   
wifes petition for dissolution of marriage on the ground of husbands
unsoundness of mind and the husband refusing to submit to medical examination,
the question whether adverse inference if can be drawn, had been considered.
11.     In Smt NINGAMMA v. CHIKKAIAH14  Justice Hari Nath Tilhari observed that to 
compel a person to undergo or to submit himself or herself to medical
examination of his or her blood test or the like without his consent or against
his wish tantamount to interference with his fundamental right of life or
liberty particularly even where there is no provision either in the Code of
Civil Procedure or the Evidence Act or any other law which may be said to
authorize the Court to compel a person to undergo such a medical test as blood
group test or the like against his wish, and to create doubt about the chastity
of a woman or create doubt about the mans paternity will amount to nothing but
interference with the right of personal liberty.
12.     In three Judge Bench of the Apex Court in SHARDA v. DHARMPAL15 Justice    
S.B.Sinha speaking for the Court while summing up observed at para 81 as
hereunder;
        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 in  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.

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13.     The Apex Court, in fact, had made an elaborate survey of all the facets in
the light of the decisions governing the question both in England and in this
country. In the light of the decision of the Apex Court referred to supra, now
the question is whether in the facts and circumstances of the case the relief
prayed for by the husband to be granted or to be negatived. The facts already
had been narrated supra.  In the light of the specific stand taken by the
husband inasmuch as the adduction of oral evidence may not be of much help to
establish the stand taken by the husband, it would be just and proper to direct
the wife to submit to the medical examination for the purposes prayed for in the
application.  As already referred to supra, it is true that the wife had prayed
the Court by filing O.P. for dissolution of marriage on certain grounds.
However, for reasons best known, the wife had not choosen to file any
application of this nature, but the husband had choosen to do so. Hence, taking
the over all facts and circumstances and in the light of the peculiar facts, the
wife is directed to undergo medical examination as prayed for in the
application.  The learned Judge dismissed the application on unsustainable
grounds. Hence, the impugned order is hereby set aside.
14.     Accordingly, the Civil Revision Petition is hereby allowed and the
impugned order is set aside. Since it is a matrimonial dispute and inasmuch as
the wife is complaining that only with a view to delay the divorce proceedings,
the husband is filing such applications, the learned Judge to make an endeavour
to dispose of the main O.P. itself at the earliest point of time. Inasmuch as
this Civil Revision Petition arises out of an interlocutory order in a
matrimonial dispute, this Court directs the parties to bear their own costs.

1 AIR 1985 ANDHRA PRADESH 1      
2 AIR 1921 CALCUTTA 459   
3 (1954) 67 MADRAS LW 676   
4 AIR 1955 NADRAS 546 (547)  
5 AIR 1963 GUJARAT 250  
6 AIR 1972 MYSORE 157=1972(1) My LJ 136    
7AIR 1955 ANDHRA 207   
8 AIR 1999 MADRAS 232   
9 AIR 1962 ORISSA 65  
10 AIR 1993 SC 2295=1993(3) SCC 418   
11 AIR 1981 MADRAS 349=1981(1) MLJ 440    
12 AIR 1966 MADRAS 443=1966(2) MLJ 383    
13 AIR 1972 PUNJAB & HARYANA 270      
14 AIR 2000 KARNATAKA 50    
15 (2003) 4 SUPREME COURT CASES 493

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