Refusal to undergo medical examination can lead to adverse inference in cases of impotency under the Indian Divorce Act.

Kamat, J.

By this appeal the judgment dated June 9, 1993 of the learned District Judge, Kottayam dismissing the petition of the appellant husband under S.19(1) and (3) of the Indian Divorce Act for declaration of nullity of marriage on two grounds, namely, that the respondent wife was impotent at the time of the marriage and that the respondent was a lunatic at the time of her marriage, is brought under challenge.

2. We nave been taken through the evidence on record and the material pleadings.

3. The parties are Indian Christians and undisputedly are governed by the provisions of Indian Divorce Act. They were married on May 26,1986 at Thekkady. Both are capable and educated. The husband is a Branch Manager, Civil Supplies Corporation, Kanjikuzhy branch whereas the wife is also a graduate and works as an Assistant in the New India Assurance Company Ltd., Kottayam. It was an arranged marriage and even then gave bitter experience leading to the present appellant's petition as stated above.

4. During the course of the proceedings, when examination of the petitioner husband was in progress, an application by him praying for medical examination of both the petitioner as well as the respondent by I. A.No.1522 of 1991. By order e the said application a medical board was constituted from the department of gynecology, Medical College Hospital, Kottayam. The order to this effect was passed from November 14, 1991 directing both the parties to appear for the said medical examination to ascertain counter allegations as regards potency. The record shows that the respondent wife objected to the said application, seriously and strenuously contending that she is fully capable and potent and the allegation in regard thereto arc baseless and malafide. In spite of these objections denying the allegations of the appellant/ petitioner, the fact remains and it is so recorded by the learned judge, in para.6 of the impugned judgment in the following manner: -

"The proceedings in the above petition would disclose that though the petitioner appeared before the Medical Board consisting of a Psychiatrist and Urologist and he was examined by the Medical Board, the respondent refused to appear before the Medical Board and submit herself to a medical

examination."

5. After this examination the proceedings continued further, when one of the members of the medical board who had examined the appellant and issued a report (Ext. A1) was also examined. The respondent wife examined herself without any documentary evidence on record. The learned judge, in para. 12 of the impugned judgment has clearly observed as follows:

"One is the impotency of the respondent and the other case that she was lunatic at the time of her marriage and continued to be so which contributed to the impotency of the respondent. But it may be noted that though the petitioner made an allegation that his wife the respondent was a lunatic prior to the marriage, at the time of the marriage and continued to be so thereafter, the petitioner had not pressed the said ground as evidenced by the endorsement made by the learned counsel for the petitioner in the petition itself dated 27-5-1993."

Thus it would be seen that as the appellant did not press the ground of lunacy, the only ground left for the learned judge's consideration was of potency. The learned judge had held that this ground is not established.

6. In our judgment the conclusion of the learned judge is legally erroneous.

7. The undisputed fact is that the respondent wife did not submit to the medical examination even after the order of the learned judge on application I.A. 1522/91.

8. Impotency means incapacity or inability for normal cohabitation. Such incapacity or inability may be on account of several factors. Impotency is the lack of ability to perform full and complete sexual intercourse. When this aspect is sought to be established and proved by a party to the matrimonial litigation, medical examination of parties to the marriage is