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2006 Supreme(AP) 830

2006 (5) ALT 762
P.S. NARAYANA,J.
C.R.P. No. 385 of 2006
Decided on 24-07-2006.
Padala Kaniki Reddy
vs.
Padala Sridevi
Advocate Appeared
Mr. A. Veera Swamy, Counsel for the Petitioner.
Mr. Kumar Reddy Anji Reddy, Counsel for the Respondent.

Headnote:HINDU MARRIAGE ACT, Secs.12 & 13 - CONSTITUTION OF INDIA, Art.21 - Matrimonial disputes - Medical Test - Wife filing O.P for dissolution of marriage on grounds of insanity, impotency and cruelty - Husband contends that because of defective uterus wife is unable to conceive and that allegations against him are baseless and defect lies with wife

       only.

       Trial Court dismissing Application filed by husband seeking direction to wife to unergo medical examination by qualified lady Gynecologist so as to substantiate fact whether she enjoyed conjugal life and is capable of begetting children considering condition of her virginity - Wife contends that she cannot be directed to undergo such test since it would amounts to violation of right to privacy and personal liberty and that virginity test cannot constitute sole basis to prove consummation of marriage.

       Medical test - Observations of Apex Court:

       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”

       In this case, wife prayed for dissolution of marriage on certain grounds; however, for reasons best known she had not choosen to file Application for medical examination but husband had choosen to do so - Trial Court dismissed Application on unsustainable grounds - Impugned order of trial Court, set aside - CRP, allowed.

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 hereinafter 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 has 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 leaned 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 tiled 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 appre

























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