ORDER :

Sri. G.R. Gurumath, Senior learned counsel for Sri. Raviraj Malali learned counsel for the petitioner. Sri. Ashok B., learned counsel for the respondent.

2. The writ petition is admitted for hearing. With consent of the parties, the same is heard finally.

3. In this petition under Article 227 of the Constitution of India the petitioner has assailed the validity of the order dated 19.11.2016 & 09.02.2017 passed by the Family Court and to direct the Family Court to allow the memo dated 16.01.2017 filed by the petitioner contained in Annexure-J. Alternatively, the petitioner has prayed for issuance of a commission for holding a expert medical investigation on the respondent regarding his impotency.

4. Facts giving rise to filing of the writ petition briefly stated are that the marriage between the parties was solemnized on 05.03.2014. The petitioner filed a petition under Section 12(1)(a) read with Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground that respondent is impotent. It was averred in the petition that the marriage of the petitioner and the respondent has not been consummated due to impotency of the respondent. The respondent filed statement of objections and denied the averments made in the petition and filed a counter claim seeking the relief of dissolution of marriage on the ground of cruelty.

5. The petitioner filed her objections on 01.07.2016. The respondent underwent a medical test at the institute of Nephro-Urology, an autonomous institute of Government of Karnataka and a certificate with regard to his potency was issued on 17.08.2016. On 19.07.2016, the matter was adjourned for cross-examination of Plaintiff Witness No.1 on 22.08.2016. On the said date, the petitioner filed an application under Section 75(e) and Section 151 read with Order XXVI Rule 10-A of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short), in which a direction was sought to the respondent to undergo medical examination. The respondent filed an objection to the aforesaid Interlocutory Application No.5 along with the report of Institute of Nephro-Urology. The Family Court rejected the aforesaid application by an order dated 19.11.2016 on the ground that undisputedly the respondent has undergone the potency test. Therefore, there is no need to pass separate orders on I.A.No.5. However, the right of the parties to lead evidence on the issue of potency was kept open. Thereafter, the petitioner filed a memo, in which it was stated that respondent may be directed to discharge the burden of proof without cross-examination of the petitioner whose evidence the respondent has pre-empted. The aforesaid memo was dismissed by the Family Court inter alia on the ground that the burden of proof lies on the petitioner, which she has failed to discharge and only if the petitioner proves that the respondent is impotent, the respondent will have to disprove it by establishing that he is potent. Accordingly, the memo filed by the petitioner was dismissed.

6. Learned counsel for the petitioner while inviting the attention of this Court to statement of objects and reasons of the Family Courts Act, 1984 (hereinafter referred to as ‘the Act’ for short) submitted that the Act has been enacted to simplify the means of evidence and procedure so as to enable a Family Court to deal effectively with a dispute. While pointing out to Section 10(3) of the Act, it is submitted that Family Court can evolve its own procedure with a view to arrive at a settlement in respect of the subject matter of suit or proceedings or at the truth of the facts alleged by one party and denied by the other. It is further submitted that the respondent has voluntarily produced the medical certificate, therefore, the burden is on the respondent to prove the same. In support of aforesaid submission, reliance has been placed on decisions of Hon’ble Supreme Court in SANTHINI VS. VIJAYA VENKATESH 2018 (1) SCC 1 and SHARADA VS. DHARAMPAL 2003 (4) SCC 493.

7.