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2014 Supreme(Mad) 4520

MADRAS HIGH COURT
S. TAMILVANAN, J.
B. Madhan – Appellant
Vs.
N. S. Shanthakumari – Respondent
CRP (PD) No. 2493 of 2013
Decided On : 22/08/2014

Headnote:

Hindu Marriage Act, 1955 – Sections 12, 25 – Non-consummation of the marriage – Permanent alimony – Petition in O.P. has been filed under Ss. 12(1)(a) and 25 of Hindu Marriage Act, 1955, by Santha Kumari/respondent herein against the revision petitioner-B. Mathan, seeking an order that the marriage between the revision petitioner and the respondent held on 19-4-2012 at Sri Raghavendra Kalyana Mandapam, Singarachariar Street, Triplicane, Chennai-600 005, as null and void on account of non-consummation of the marriage on the ground of impotency and fraud being committed by the revision petitioner herein. – The respondent herein has also further sought a direction against the revision petitioner to pay Rs. 50,00,000/- to the respondent towards permanent alimony. – Held, Court is of the view that the defence raised by the revision petitioner is not legally sustainable. – Hence, this revision petition is liable to be dismissed, on the ground that there is no error or infirmity in the impugned order passed by the Court below so as to warrant any interference by this Court and challenging the order would be construed as a delay tactics, as submitted on the side of the respondent herein. – It is also made clear that the Court below shall pass appropriate further orders, towards the Medical Test being conducted by expert doctors and get the reports within four weeks from the date of receipt of a copy of this order. – On the facts and circumstances, the expenses shall be met out by the revision petitioner. – Nature of the matrimonial dispute, the Court below is directed to dispose of the O.P. No. 1722 of 2012 on merits, uninfluenced by the findings of this Court, if any, in this order, within a period of four months from the date of receipt of a copy of this order. – Petition Dismissed

ORDER :

The revision has been preferred challenging the order dated 15-4-2013 made in I.A. No. 1641 of 2012 in O.P. No. 1722 of 2012 on the file of the Principal Family Court, Chennai.

2. The petition in O.P. No. 1722 of 2012 has been filed under Ss. 12(1)(a) and 25 of Hindu Marriage Act, 1955, by Santha Kumari/respondent herein against the revision petitioner-B. Mathan, seeking an order that the marriage between the revision petitioner and the respondent held on 19-4-2012 at Sri Raghavendra Kalyana Mandapam, Singarachariar Street, Triplicane, Chennai-600 005, as null and void on account of non-consummation of the marriage on the ground of impotency and fraud being committed by the revision petitioner herein. The respondent herein has also further sought a direction against the revision petitioner to pay Rs. 50,00,000/- to the respondent towards permanent alimony.

3. In the application in I.A. No. 1641 of 2012, the respondent herein prayed before the Court below, to direct the revision petitioner to undergo medical examination by a competent Urologist and Psychiatrist to assess his status of potency by means of penile Intra Corporeal Pressure (PICP) Test and Duplex Doppler Penile Ultrasound (DDPU) or any other scientific tests to give a scientific opinion regarding potency of the revision petitioner to determing physical and mental potency in respect of consummation of marriage, pending disposal of the main O.P.

4. It is seen that the revision petitioner herein, as respondent in the Interlocutory Application in I.A. No. 1641 of 2012, had filed his counter seeking to dismiss the aforesaid application, however, by order, dated 15-4-2013, the Interlocutory Application in I.A. No. 1641 of 2012 was allowed by the Court below, whereby the petitioner herein and the respondent herein were directed to appear before the Malar Fortis Hospital, Adyar, Chennai, for a thorough Andrological and Gynaecological examination of both, by qualified doctors. The order reads that they are also to be subjected to thorough psycho-diagnostic and psychiatric test to find out whether any of them suffering from sychological dysfunction in sex. Aggrieved by the aforesaid order, the respondent in I.A. No. 1641 of 2012 has preferred the present revision petition.

5. The revision petitioner has stated that the finding of the Family Court holding that the proper medical test should be by an expert Urologist for deciding the potency of the revision petitioner/husband, is not sustainable in law. It is further stated that the revision petitioner had undergone thorough medical examination for a period of two months in the Government Hospital accompanied by police in a criminal proceeding by Doctors who conducted a detailed medical examination based on the copy of FIR furnished by police, hence further test is not required.

6. Dr. C. Ravichandran, learned counsel appearing for the revision petitioner submits that the order for examination of the petitioner herein on the ground of lack of genuine medical examination is not correct. The other defence raised by the learned counsel for the revision petitioner is that the respondent had not co-operated to have consummation and she had not submitted any medical certificate to prove that she has been physically and mentally normal and also a virgin. It is further contended that the Court below ought to have seen that the revision for filing the application seeking for re-examination or medical test by a private hospital would not be useful, as already Government doctor had examined and gave medical report.

7. In the accompanying affidavit, the respondent herein, who was the applicant in I.A. No. 1641 of 2012 has stated in para 3 as follows :

I have been obliged to make a serious allegation of Impotency, Mental Psychological problems on the part of the respondent which has resulted in the ruination of my life, that too within 13 days of the marriage. I would not have ventured to make such serious allegations if there was no truth
























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