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1971 Supreme(Bom) 101
IN THE HIGH COURT OF BOMBAY
(P.S. Malvankar J.)
SULABAI - Petitioner
Versus
JAGANNATH - Respondent
Advocates appeared
For petitioner-K. Y. Mandlik.
For State - M.A. Garud, Hon. Asstt. to Govt. Pleader.
Compelling a person to undergo medical examination without their consent violates their fundamental right to personal liberty under Article 21 of the Constitution.
Headnote:
MEDICAL EXAMINATION - MAINTENANCE - ARTICLE 21 - SECTION 114 OF THE INDIAN EVIDENCE ACT - COMPULSORY MEDICAL EXAMINATION - PERSONAL LIBERTY - ADVERSE INFERENCE - The Court held that compelling a person to undergo medical examination without their consent violates their fundamental right to personal liberty under Article 21 of the Constitution. However, the Court also held that if a person refuses to submit to a medical examination in a case where the whole case depends on the state of their mind and body, the Court may draw an adverse inference or presumption against them under Section 114 of the Indian Evidence Act.
Fact of the Case:
The petitioner, a woman, had obtained an order for maintenance under Section 488 of the Criminal Procedure Code against her husband. When the husband remained in arrears, she applied for executing the order for the recovery of the amount of arrears. In his reply, the husband alleged that the petitioner had committed acts of adultery and had given birth to a child. The Magistrate ordered the petitioner to remain present before the Medical Officer and submit to medical examination to determine whether she had committed adultery.
Finding of the Court:
The Court held that the Magistrate's order compelling the petitioner to submit to medical examination violated her fundamental right to personal liberty under Article 21 of the Constitution. The Court also held that there was no provision in the Criminal Procedure Code, the Indian Evidence Act, or any other law that justified such compulsion.
Issues: 1. Whether the Magistrate's order compelling the petitioner to submit to medical examination violated her fundamental right to personal liberty under Article 21 of the Constitution? 2. Whether there was any provision in the Criminal Procedure Code, the Indian Evidence Act, or any other law that justified such compulsion?
Ratio Decidendi: 1. The Court held that the Magistrate's order compelling the petitioner to submit to medical examination violated her fundamental right to personal liberty under Article 21 of the Constitution because it subjected her to physical coercion that did not admit of legal justification. The Court noted that Article 21 provides that no person shall be deprived of their personal liberty except according to procedure established by law, and that there was no law that justified the Magistrate's order. 2. The Court held that there was no provision in the Criminal Procedure Code, the Indian Evidence Act, or any other law that justified the Magistrate's order compelling the petitioner to submit to medical examination. The Court noted that Section 114 of the Indian Evidence Act allows the Court to draw an adverse inference against a party who refuses to produce evidence, but that this provision did not apply in this case because the petitioner was not refusing to produce evidence, but was instead refusing to submit to a medical examination.
Final Decision: The Court set aside the Magistrate's order compelling the petitioner to submit to medical examination.
2. The petitioner before the learned Sessions Judge had obtained an order for maintenance under section 488, Criminal Procedure Code against her husband. When the husband remained in arrears amounting to Rs. 690, she applied for executing the order for the recovery of the amount of arrears. In that application, her husband alleged in his reply that the petitioner had committed acts of adultery and had given birth also to a child. When the application of the petitioner came up for hearing before the learned Magistrate, the petitioner and her advocate remained absent, and the learned Magistrate passed the following order :-
"In view of the orders passed on Exs. 1 and 8, the applicant is directed to remain present before L. M. O., Bhir, on 22-12-1970 on payment of Rs. 10 towards her T. A. and D. A. L. M. O. be informed accordingly."
Being aggrieved by this order, the petitioner went in revision to the Sessions Court. The learned Sessions Judge allowed the revision application recommending to this Court that the order passed by the learned Magistrate should be set aside. According to the learned Sessions Judge, compelling the petitioner to submit to medical examination in order to find out whether she has committed any act of adultery is testimonial compulsion and secondly, he has referred to some passage from Modis Medical Jurisprudence, where the learned author has observed that the Court has no power to compel any woman to submit the private parts of her person to the examination of a medical practitioner, male or female. Now, it is needless to say that there is no question of testimonial compulsion in this case for the simple reason that the petitioner is not an accused person. She had obtained an order for maintenance under section 488, Criminal Procedure Code and she went to the Court for putting that order in execution when her husband remained in arrears
3. It appears that the learned Magistrate by passing the order has compelled the petitioner to remain present before the Medical Officer and submit to medical examination. Now, it is no doubt true that in order to find out whether the petitioner has committed any act of adultery after the order for maintenance was passed in her favour, her medical examination would be one of the pieces of evidence. But the learned Magistrate, while passing this order, has not taken into account the willingness or otherwise on the part of the petitioner. Surely, if the petitioner is willing to submit herself to medical examination and gives her consent, there need be no objection to such examination being made by a Medical Officer. Unfortunately, however, the learned Magistrate it appears, without ascertaining whether the petitioner is willing or not and without obtaining her consent, has passed this order which compels her to submit herself to medical examination. Such an order, I think, in the absence of any valid law providing for it, contravenes the fundamental right guaranteed by Article 21 of the Constitution of India.
4. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The word liberty is a comprehensive term and it would include not merely freedom to move about unrestricted, but it would also include liberty of conduct, choice and action as the law gives and protects. It is true that the Constitution does not define the word, but it seems to me that it is not confined to mere freedom from bodily restraint. Liberty contemplated under this Article extends to the full range of conduct which the individual is free to pursue. Obviously, therefore, the right conferred by this Article cannot be subjected to physical coercion in any manner that does not admit of legal justification. 1 hat being the position, the learned Magistrate, wh
