The court has inherent power to order medical examination to ascertain the truth of impotency allegations in matrimonial disputes, and such direction does not infringe fundamental rights.

Hon'ble Shri Justice Sujoy Paul

1. The petitioner is aggrieved by order passed by the Court below (Annexure P-6) dated 2/9/2011. By this order the Court below has allowed the application under Section 45 of the Evidence Act and directed for medical examination of the present petitioner before the medical board to ascertain whether the petitioner is impotent or not?

2. Shri Aniket Naik, Learned Counsel for the petitioner submits that as against the application preferred by petitioner's wife under Section 45 of the Evidence Act (Annexure P-3), the present petitioner filed a reply/application and made a counter request for medical test of the wife as well. The Court below by Annexure P-6 has allowed the application of wife and rejected the application of present petitioner on the ground that present petitioner is neither applicant/plaintiff before the Court below nor he has made any allegations against his wife by filing any petition. The Court below opined that the basic controversy can be resolved if the petitioner is directed to appear for his medical examination before the medical board. By assigning aforesaid reasons, the Court below allowed the application of the wife and rejected the application of present petitioner. Shri Aniket Naik relied on AIR 1966 Allahabad 150 (para 2) (Jagdish Lal v. Smt. Shyama Madan and others) and AIR 1969 A.P. 167 (Adapa Vittal v. Govula Ramakistian and others). However, Shri Naik fairly submits that this judgment shows that it is a consent order for medical examination of wife. Therefore, this judgment will not be a binding precedent for the Court. He further relied on AIR 1972 Mysore 157 (Smt. Revamma v. Sri Shanthappa). In this case in para 4 and 5 the Mysore High Court opined that under Section 55 C.P.C. the Court does not have any inherent power to compel a person to undergo medical examination. Para 4 and 5 are reproduced as under:-

4. In a case where a party alleges that a person is impotent or suffering from other such incurable disease, it is for the person making such an allegation to prove the same. A party cannot be compelled to undergo medical examination. As stated by the High Court of Gujarat.

There is no provision under the Hindu Marriage Act or the Rules framed thereunder or in the Code of Civil Procedure or in the Indian Evidence Act or any other law which would show any power in the court to compel any party to undergo medical examination.

A medical examination for ascertaining whether a person is insane or impotent are all cases in which unless by the law of the land a person can be compelled to undergo medical examination, an order directing a person to undergo medical examination would be clearly illegal and without jurisdiction. In P. Sreeramamurthy v. P.Lakshmikantham. AIR 1955 Andhra 207, when an order was passed directing medical examination, it was held that there must be some statutory provision under which it would be open to the court to compel medical examination of a party, thus restricting the enjoyment of personal liberty of the person. It was also held that in a case like this it was not right to rely upon the general or inherent powers of the court under Section 151 of the Civil Procedure Code. It may be pointed out that even medical examination is specifically provided as under the terms of the Indian Lunacy Act. In the absence of any provision, it is not competent to any party to compel the other party to undergo medical examination.

5. In the case of Ranganathan Chettiar v. Chinna Lakshmi Achi, AIR 1955 Mad 546, it has been held that it is not open to the court under S. 151 of the Code of Civil Procedure to order a medical examination of a party against the consent of such party. To pass such an order is tantamount to treating a human being as a material object, which no court should do under its inherent power. It is, thus, clear that it is not open to the court to invoke Section 151 of the Code of Civil Procedure to order a medical examination against his