Order for appointment of commission can be passed.

This revision petition is against the order appointing a Commissioner-Doctor preferably Civil Surgeon rank and M.D. for scientific investigation of the petitioner in the main O.P. to know whether he is impotent or not and whether he is able to consummate the marriage. O.P. No. 93 of 1979 was filed by the husband for restitution of conjugal rights. The contention of the wife is that the husband is impotent and during the pendency of the original petition the wife filed an interlocutory application for the appointment of a Commissioner. In the counter-affidavit the allegation of impotency is denied and it is stated that the question of examination by competent Doctor does not arise. The Court below held that if the respondent is not suffering from any defect no harm would be caused to him if he is sent for medical examination and in this view the application is allowed

2. In Birendra Kumar v. Hemalata Biswas Birendra Kumar v. Hemalata Biswas A.I.R. 1921 Cal. 459 a suit was filed by husband under the India Divorce Act to declare the marriage on two grounds namely the wife was impotent and the consent was obtained by fraud. It is also alleged that the wife was suffering from incurable syphilies. After reference to the evidence it was concluded that full investigation of the case was not done and the case was remanded for trial. In the course of giving directions for the investigation of fraud and consideration of impotency the Division Bench consisting of Mookerjee, A.C.J. and Chaudhuri, J. held as follows:

We may and that it is necessary that there should be a proper medical examination of the person of the respondent“,

Referring to the power of the Court to order Physical examination it is held as follows:

“The Courts naturally exercise a wide discretion in ordering physical examination and always do so subject to such conditions as will afford protection from violence to natural delicacy and sensibility.”

In George Swamidoss Joseph v. Sundari Edward George Swamidoss Joseph v. Sundari Edward (1954) 67 L.W. 676 the decree for nullity of marriage was sought for by the husband on the ground of impotency or due to her incapacity to consummate the marriage. In the context of considering the adequacy of evidence for proving impotency. Ramaswamy, J of the Madras High Court held as follows at P. 630.

“While the confessions or admissions of either party are admissible to prove his or impotency, they was not generally regarded sufficient unless corroborating. That a Court having jurisdiction to pronounce a decree of nullity on the ground of impotency has power also to direct a proper medical and surgical examination of the person of the parties whenever this is necessary, is well settled in England”.

“In this country it may be held that by necessary implication the Court is armed with all the usual powers which in England are deemed requisite to ascertain the fact of incapacity and without which it would be impossible for any Court to exercise such a jurisdiction in ordering the examination, and do so subject to such conditions as will afford protection from injuries to natural delicacy and sensibilities.”

In Sreeramamurty v. Lakshmikantham Sreeramamurty v. Lakshmikantham (1955) An. W.R. 13: A.I.R. 1955 A.P. 207 the suit was filed by the Plaintiff for partition and recovery of l/3rd share on the ground that her husband died divided from his brothers and alternatively it is prayed that if the partition is not, true she is entitled to l/3rd share in the non-agricultural properties for maintenance and further it was contended by the petitioner that the plaintiff gave birth to a child subsequent to her husband's death and being unchaste is not entitled to recover any maintenance Thereupon the application was filed on 14th February, 1953 to find out by medical examination whether the 1st respondent gave, birth to a child at any time. The Court below held hat the respondent could not be compelled to undergo medical examination. The learned Adv