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SUPREME COURT OF INDIA
VIKRAM NATH, PRASHANT KUMAR MISHRA, JJ.
Deep Mukerjee - Appellant
Versus
Sreyashi Banerjee - Respondent
Civil Appeal No(s). 4722-4723 of 2024 (Arising out of SLP(C) Nos. 4834-4835 of 2024)
Decided on : 05-04-2024
Hindu Marriage Act, 1955 – Section 13(1)(ia) – Indian Evidence Act, 1872 – Section 45 read with Section 151 of Civil Procedure Code, 1908 – Divorce – Non-consummation of marriage because of appellant/husband’s impotency – While allowing revision petitions preferred by respondent/wife High Court has not assigned any cogent reason as to why appellant/husband cannot be sent for potentiality test – Instead of dwelling on contentions of parties qua merits of interim applications decided by Trial Court, High Court focused on conduct of parties which was not at all germane for deciding the issue as to validity of order passed by Trial court – When appellant/husband is willing to undergo potentiality test, High Court should have upheld order of Trial Court to that extent – Order passed by Trial Court insofar as it directs appellant/husband to take medical test to determine his potentiality maintained. (Paras 8 and 9)
Facts of the case:
Challenge in these appeals is to the common order dated 28.11.2023 passed by High Court in Civil Revision Petition Nos. 2844 and 2848 of 2023 allowing the revisions while setting aside order dated 27.06.2023 passed by Trial Court in I.A. Nos. 8 & 9 of 2023 preferred by appellant/husband in O.P. No. 2866 of 2021.
Findings of Court:
Let the test be conducted in the manner indicated by Trial Court within a period of four weeks from today and report be submitted within two weeks thereafter. Impugned order passed by High Court stands modified.
Result : Appeals allowed in part.
Key Points: - The High Court’s reversal of trial court order directing potentiality tests is partially allowed; the Supreme Court restores the trial court’s direction to conduct medical tests for potentiality within specified timelines (!) (!) (!) . - The appellant/husband is willing to undergo the potentiality test, and the Court states the High Court should have upheld the Trial Court’s order to that extent (!) (!) . - The test is to be conducted within four weeks from the date of judgment, with the report due within two weeks thereafter; the High Court order is modified accordingly (!) . - The case concerns non-consummation of marriage allegedly due to the husband’s impotency and the admissibility/appropriateness of testing under Indian Evidence Act and CPC considerations (!) (!) . - Parties had previously obtained interim orders involving a competent medical board and confidentiality of test results; the current judgment confirms those directions to the extent of ordering the tests (!) . - The decision references Sharda vs. Dharmpal in the context of potentiality testing but bases its ruling on the facts and statutory framework rather than that precedent alone (!) . - The overall outcome: Appeals allowed in part; order of Trial Court dated 27.06.2023 maintained to the extent of directing medical testing for potentiality (!) .
JUDGMENT :
PRASHANT KUMAR MISHRA, J.
Leave granted.
2. Challenge in these appeals is to the common order dated 28.11.2023 passed by the High Court in Civil Revision Petition Nos. 2844 and 2848 of 2023 allowing the revisions while setting aside the order dated 27.06.2023 passed by the Trial Court in I.A. Nos. 8 & 9 of 2023 preferred by the appellant/husband in O.P. No. 2866 of 2021.
3. The parties were married on 23.07.2013 at Chennai and thereafter they agreed to move to the United Kingdom where they stayed together happily for a period of 7½ years. After they returned, they stayed together in a residential property belonging to the respondent/wife’s father. However, upon disputes being cropped, they have separated in April, 2021 and since then, it is alleged by the appellant/husband that the respondent/wife neither joined his company nor responded to any communication and/or messages of the appellant/husband.
4. The appellant/husband preferred application under Section 9 of the Hindu Marriage Act, 19551[‘Act,1955’] before the Additional Principal Family Court at Chennai, seeking restitution of conjugal rights being OP No. 2441 of 2021 whereas the respondent/wife subsequently preferred OP No. 2866 of 2021 for grant of decree of divorce under Section 13(1) (ia) of the Act, 1955 on the ground that the marriage between the parties has not consummated because of the appellant/husband’s impotency.
5. In the above factual background, the appellant/husband moved I.A. Nos. 8 & 9 of 2023 under Section 45 of the Indian Evidence Act read with Section 151 of the Code of Civil Procedure, 19082[‘CPC’] for subjecting the appellant/husband to undergo potentiality test and at the same time referring the respondent/wife for fertility test and psychological/mental health test for both the parties. Vide order dated 27.06.2023, the Trial Court allowed the above interim applications on the condition that a competent medical board shall be constituted by the Dean, Rajiv Gandhi Government General Hospital, Chennai to conduct the subject tests for both the parties as prayed for in the interim applications and the report of the medical board be sent to the Court through the advocate Commissioner in a sealed cover. Both the parties were directed not to reveal the result of the tests to any third party and maintain complete secrecy.
6. The Trial Court’s order dated 27.06.2023 was challenged by the respondent/wife before the High Court by way of two separate revisions which have been allowed by the High Court under the impugned order.
7. In the course of arguments in this Court, learned counsel for the appellant/husband submitted that when the appellant/husband is willing to undergo potentiality test, there is no reason why the High Court should set aside the entire order. The learned counsel for the appellant would refer to the decision of this Court in the case of “Sharda vs. Dharmpal” (2003) 4 SCC 493. Per contra, the learned counsel for the respondent/wife would submit that when the respondent/wife is not willing to undergo any test be it fertility test or mental health check-up, she cannot be compelled to undergo such tests.
8. While allowing the revision petitions preferred by the respondent/wife the High Court has not assigned any cogent reason as to why the appellant/husband cannot be sent for potentiality test. Instead of dwelling on the contentions of the parties qua the merits of the interim applications decided by the Trial Court, the High Court focused on the conduct of the parties which was not at all germane for deciding the issue as to the validity of the order passed by the Trial court.
9. Considering the fact situation of the present case, we are satisfied that when the appellant/husband is willing to undergo potentiality test, the High Court should have upheld the order of the Trial Court to that extent. Accordingly, we allow the present appeals in part maintaining the order passed by the Trial Court dated 27.06.2023 insofar as it directs the app
Divorce – Potency of spouse can be validly confirmed through Potentiality Test.
The power of a matrimonial court to order a person to undergo a medical test and the conditions under which such an order can be passed.
The main legal point established is the power of a matrimonial court to order a person to undergo a medical test in cases related to marriage and impotency.
The main legal point established in the judgment is that in cases involving allegations of impotency and refusal to cooperate in sexual intercourse, the medical examination of both parties may be nec....
Impotence claims must be substantiated by credible evidence; absence of corroborating testimony and medical records led to dismissal of divorce appeal under Hindu Marriage Act.
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