The right to privacy and personal liberty under Art. 21 of the Constitution must be balanced with competing interests, and the exercise of discretion by the Court should be based on a strong prima facie case and sufficient material.

1. This petition filed under Sec. 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the order dated 22-2-2003 passed by the learned Additional District Judge, Jalandhar dismissing the application of the husband-petitioner in which prayer was made for getting the wife-respondent medically examined in order to prove her virginity.

2. The wife-respondent has filed a petition before the Additional District Judge under Sections 11 and 12 of the Hindu Marriage Act, 1955 for a decree of nullity of marriage, inter alia, on the ground that the marriage has never been consummated. The husband-petitioner has taken the defence that the marriage has been consummated and he is not impotent. In order to prove that the wife-respondent is not virgin, the husband-petitioner filed an application for her medical examination which has been declined.

3. Mr. G. P. S. Bal, learned counsel for the husband-petitioner has vehemently argued that refusal of medical examination by the wife-respondent is a material fact and the Court should not have dismissed the application filed by the husband-petitioner. According to the learned counsel, the medical examination of the wife-respondent would go a long way to prove the fact whether the marriage is consummated or not. In support of his submission, the learned counsel has placed reliance on paragraph 74 of a judgment of the Supreme Court in the case of Sharda V/s. Dharmpal (2003) 3 JT (SC) 399 .

4. After hearing the learned counsel, I do not feel persuaded to take a view that the wife-respondent shall be subjected to medical examination to prove her virginity because such a medical examination even if it does not prove her virginity would not necessarily lead to the conclusion that the marriage with the husband-petitioner has been consummated. It is trite to state that virginity is not the only proof of non-consummation of marriage. The incapacity of the husband in any form, physical or mental, may also be the factor for non-consummation of marriage. Allowing the medical examination of a woman for her virginity would certainly violate her right of privacy and personal liberty enshrined under Art. 21 of the Constitution. Such an order would amount to a roving enquiry against a female who are vulnerable even otherwise. In Shardas case (supra), their Lordships of the Supreme Court has observed that no Court shall order a roving enquiry and there has to be sufficient material before the Court to enable it to exercise such a discretion. The observations of their Lordships read as under :-

"The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia... etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter, right to personal liberty as enshrined under Art. 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Art. 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Art. 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the Legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflic