JUDGMENT :

1. Heard the learned counsel for the petitioner.

2. Present petition under article 227 of the Constitution of India has been directed for quashing/setting aside the order dated 17.01.2023 passed in original suit no. 574 of 2021 pending before the court of Smt. Sanjeeta Srivastava, Additional Principal Judge, I Family court, Ranchi, whereby and whereunder petitioner (husband) has been directed to undergo potency test under supervision of Medical Board at RIMS, Ranchi.

3. For the sake of convenience, the parties viz, the petitioner and the respondent are referred to as husband and wife in this petition. The wife has instituted a suit under Section 12 (1)(a) of the Hindu Marriage Act, 1955 in the court of Additional Family Court-I, Ranchi, registered as Original Suit No. 574 of 2021 seeking decree of nullity of marriage on the ground of impotency of the husband/defendant.

4. Learned counsel for the petitioner (husband) assailing the impugned order has submitted that earlier an FIR was lodged bearing lower Bazar P.S. Case No. 140 of 2021 for the offence under Section 498-A,120B and 420 of the Indian Penal Code against the petitioner and his all family members, which was duly investigated and accusations were found false. The petitioner was also subjected to potency test on 14.09.2021 at Sadar Hospital, Ranchi and was declared as not impotent by the Medical Board of three doctors. It is further submitted that through the impugned order petitioner is again directed to undergo potency test at RIMS Ranchi wherein no facility for potency test is available as per report submitted to Sadar Hospital by superintendent of RIMS, Ranchi vide letter dated 21.09.2021.

5. It is further submitted that marriage between the parties was solemnized on 22.05.2021 and there are sufficient materials establishing that the marriage has been consummated between the parties to full satisfaction and earlier potency of the petitioner has been found positive by the medical board. Hence, impugned order is not legally sustainable and fit to be set aside.

6. So far as question of availability of potency test at RIMS, Ranchi is concerned vide order dated 02.08.2023 of this court, a report was called for from the concerned trial court seeking compliance report of the impugned order which has been submitted by the concerned court. Perusal of report it shows that a medical board has been constituted at RIMS Ranchi for potency examination of the petitioner and he has been noticed several times to appear before the Board but he did not appear as yet. Therefore, the plea of petitioner that there is no facility of potency test at RIMS Ranchi cannot be entertained at present stage of the proceedings.

7. So far direction to undergo potency test in a Matrimonial Suit instituted for annulment of marriage under Section 12(1)(a) Hindu Marriage Act on the ground of impotency of either party is concerned, from the very nature of the proceeding and the ground available in the above provision for annulment of marriage which could not be consummated due to impotency of either party is permissible under law.

8. In the case of Sharda Vs. Dharmpal reported in AIR 2003 SC 3450, the Apex Court has held that, “without proper medical examination, it would be difficult to arrive at a conclusion as to whether the husband is suffering from impotency or not and that if the husband avoids such medical examination on the ground that it violates his right of privacy or personal liberty as enshrined under Article 21 of the Constitution of India, it would become impossible to arrive at the definite conclusion on the impotency or otherwise of the husband. The Supreme Court further held that avoidance of medical examination to ascertain the impotency of husband may render the very ground on which the divorce is permissible nugatory and that where the legislature has conferred a right upon the spouse to seek divorce on the ground of impotency, it would be right of the that spouse which comes in co