BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 15.11.2017
DELIVERED ON :29.01.2018
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.(PD)(MD)No.1181 of 2017
C.M.P.(MD)No.5543 of 2017
Srividya : Petitioner/Petitioner/Petitioner
T.Arunachalam : Respondent/Respondent/Respondent
PRAYER : Civil Revision Petition filed under Article 227 of the Constitution
of India, against the fair and decreetal order dated 28.04.2017 made in
I.A.No.99 of 2016 in H.M.O.P.No.172 of 2012, on the file of the Principal
Subordinate Court, Trichy.
!For Petitioner : Mr.P.Thirumahilmaran
^For Respondent : Mr.C.T.Perumal
The petitioner, who is the petitioner in H.M.O.P.No.172 of 2012, has
filed the above Civil Revision Petition, challenging the fair and decreetal
order dated 28.04.2017, made in I.A.No.99 of 2016 in H.M.O.P.No.172 of 2012,
on the file of the Principal Subordinate Court, Trichy.
2. The brief facts of the case are as follows:
2.1. The petitioner herein filed H.M.O.P.No.172 of 2012 on the file of
the Principal Subordinate Court, Tiruchirappalli, under Sections 13(1)(1-a)
and 12(1)(a) of the Hindu Marriage Act, seeking divorce mainly on the ground
of cruelty and impotency. The respondent also filed a petition in
H.M.O.P.No.3199 of 2014 on the file of the Family Court, Chennai seeking
divorce on the ground of adultery and desertion. The respondent also filed a
petition in I.A.No.16 of 2014 in H.M.O.P.No.172 of 2012 on the file of the
Principal Subordinate Court, Tiruchirappalli praying to refer the wife before
the medical board for examination for the purpose of proving that the
marriage was consummated. The said I.A., was dismissed by the trial Court,
against which, the respondent/husband preferred Civil Revision Petitions in
C.R.P.(MD)Nos.1559 and 1560 of 2014 before this Court and this Court passed
the following order:
?In such circumstances, as directed in the above decision, this Court
also is inclined to refer both the parties to the Dean of the Madras Medical
College Hospital, who shall constitute a team of qualified doctors to test
the potency of the respondent/husband and another team to medically examine
the petitioner/wife as regards her virginity. The Dean after the completion
of such examination shall get the report from the team and forward the same
directly to the Principal Subordinate Judge, Tirucirappalli by name for
further proceedings in H.M.O.P.No.172 of 2012.?
2.2. According to the petitioner, as per the order of this Court, she
has undergone the medical examination before the Rajiv Gandhi Government
General Hospital, Chennai-3 and the report was also submitted. However, the
respondent did not undergo the medical examination as directed by this Court.
2.3. Now the petitioner/wife has filed the present petition in
I.A.No.99 of 2016 in H.M.O.P.No.172 of 2012 on the file of the Subordinate
Court, Tiruchirappalli, praying to refer the respondent to a medical board
for examination and to find out whether the respondent is affected by
Klinefelter Syndrome or not and to direct the medical board to submit a
report. After considering both sides, the trial Court had dismissed the
application filed by the petitioner/wife. Against which, the present Civil
Revision Petition has been filed.
3. The learned Counsel for the petitioner submitted that despite a
direction was given by this Court to the respondent/husband to undergo the
medical examination before the Medical Educational Department, Rajiv Gandhi
Government General Hospital, Chennai, the respondent did not
co-operate for the same. But, the respondent has, now, filed written
submissions and documents as if his medical report was received well in
advance on 05.11.2015. It is further submitted that the respondent
purposefully misrepresented the facts. The learned Counsel further submitted
that because of the problem of Klinefelter Syndrome, there is no pregnancy
for the past ten years and the respondent/husband is not fit for sexual life.
Under such circumstances, it is just and necessary to refer the
respondent/husband to appear before a medical board for examination, to find
out as to whether the respondent is affected by Klinefelter Syndrome or not
and to submit a report. Hence, she needs interference of this Court in the
order passed by the trial Court.
4. The learned Counsel for the respondent/defendant, on the other hand,
reiterating the facts, submitted that he had filed two petitions before this
Court seeking orders, one for undergoing potency test for himself and another
for virginity test for the petitioner/wife and both the petitions were
allowed by this Court. The respondent further submitted that both of them
undergone the test, as directed and the results of the virginity test
referred for the petitioner was received, which disclosed the fact that the
petitioner had lost virginity. Subsequent to that, the petitioner had
changed her stand before this Court in Tr.C.M.P.No.112 of 2016, stating that
she had inadvertently included the ground of impotency in the original
petition, seeking divorce, therefore, the same has to be deleted.
5. The learned Counsel for the respondent further submitted that even
though the petitioner had filed her divorce petition before the Principal
Subordinate Judge, Trichirappalli in H.M.O.P.No.172 of 2012 on the ground of
cruelty, the allegation of infertility of husband cannot be considered to be
a cruelty. The learned Counsel for the respondent further submitted that the
petitioner is having illegal relationship with the respondent’s business
partner. By suppressing all the facts and having failed in the virginity
test, the petitioner had filed this vexatious petition seeking the
infertility test for the respondent, even though infertility is not a ground
for divorce and is non-existent in the provisions of the Hindu Marriage Act.
Hence, he prays for dismissal of the Civil Revision Petition.
6. Heard the learned Counsel for the petitioner and the learned Counsel
appearing for the respondent and perused the materials available on record.
7. A perusal of records would show the pendency of criminal cases
against each other, including illegal relationship, etc.
8. I am not inclined to go into the details of those allegations
against each other and the only thing, which has to be gone into is whether
referring the respondent to a medical board for Klinefelter Syndrome check-up
is necessary or not.
9. No doubt, this Court, by order dated 01.04.2015, in CRP(MD)Nos.1559
1560 of 2014, has referred both the parties to the Dean, Madras Medical
College Hospital for medical examination and after receiving an adverse
report, the petitioner herein has changed her stand in the Tr.C.M.P.
10. Even as per the petitioner, the overall result of this disease is
that it only leads to infertility. Infertility is not a ground for obtaining
divorce. Moreover, this Court has already referred both the parties to the
Dean, Madras Medical College and after the examination, in Tr.C.M.P.
proceedings, the petitioner herself has stated that the ground of impotency
was inadvertently mentioned. Now, she has filed the present petition with a
different stand that the respondent is affected with Klinefelter Syndrome,
which is only on ego against the respondent, which will serve no purpose.
11. As rightly observed by the learned Judge, it is not a case as the
marriage has not been consummated and proving infertility is not a ground for
divorce. I am of the considered view that there will be no useful purpose in
allowing this petition and the same is liable to be dismissed.
12. In result, this civil revision petition is dismissed, as devoid of
merits. No costs. Consequently, connected miscellaneous petition is closed.
The Principal Subordinate Court,