IMPORTANT POINT
Divorce – Refusal to enter into sexual intercourse in itself is not a ground of divorce.

ORDER

The present petition has been filed by the petitioner/husband being aggrieved by the order dated 05.12.2025 passed by the Family Court, whereby the Family Court has rejected the application filed by the petitioner/husband for medical examination of the respondent/wife.

2. A divorce petition has been filed by the present petitioner against the respondent on the ground of cruelty and in the said divorce petition it has been pleaded by the petitioner/husband that the respondent/wife has refused to enter into physical relationship with the petitioner/husband and that is also alleged to be one of the factors of cruelty upon the petitioner/husband.

3. In written statement, the allegations were denied by the respondent/wife and the respondent/wife also pleaded that she was being harassed on account of dowry demand and also that she was being subjected to physical and mental cruelty and was also subjected to acts of sodomy by the petitioner/husband. She also denied the allegation that she is mentally infirm and ill.

4. An application was filed by the petitioner before the Family Court that there has been no physical relationship between the petitioner and the respondent at any point of time and counter allegations have been made by the respondent-wife upon the petitioner/husband that he committed sodomy on the respondent/wife and, therefore, she be subjected to medical examination to ascertain whether she has ever entered into sexual relationship with anybody and whether she has been subjected to sodomy/anal intercourse, at any point of time.

5. The said application has been rejected by the Family Court on the ground that the divorce petition is on the ground of cruelty and the medical examination being called cannot be ordered looking to the pleadings.

6. The counsel for the petitioner has vehemently relied on the judgement of the Hon’ble Supreme Court in the case of Sharda vs. Dharmpal, (2003) 4 SCC 493 and submitted that it has been categorically held by the Hon’ble Supreme Court in the aforesaid case that in matrimonial matters, right to privacy cannot be claimed by the other party, if medical examination is sought on such matters which are grounds of divorce. Therefore, it is vehemently argued that the order of the Family Court runs contrary to the law settled by the Hon’ble Supreme Court and medical examination ought to have been ordered by the Family Court.

7. Heard.

8. Upon considering the aforesaid submissions and on perusal of the record, it is seen that the petitioner is seeking medical examination to the extent that whether the respondent/wife has ever had sexual relations with anybody or whether she has been subjected to anal intercourse.

9. The petitioner has filed the divorce petition on the ground that the respondent/wife refused to enter into sexual relationship and that amounted to cruelty whereas the wife has raised defence that she was in fact even subjected to sodomy by the petitioner/husband.

10. The parties entering into sexual relationship or not, is not a ground of divorce and the fact may be relevant only for the limited purpose in the present case that whether the wife has committed cruelty upon the husband by refusing to enter into sexual relationship. Otherwise, it is neither a ground for declaring the marriage as void nor voidable under Sections 11 and 12 of the Hindu Marriage Act, 1955, nor a ground of divorce under Section 13. Impotence has not been alleged on the other party so that it would have necessitated medical examination of the other party.

11. The Hon’ble Supreme Court in the case of Sharda (supra) has held that in matrimonial matters where divorce is sought on a particular ground, which can only be established by medical examination, then without medical examination, it is difficult for the Court to arrive at any conclusion. The Hon’ble Supreme Court in the case of Sharda (supra) held as under:—

“76. The matter may be considered from another angle. In all such matrimonial cases where