The court affirmed the authority to order a medical examination in divorce cases, balancing personal liberty with the right to prove allegations.

1.This revision petition is directed against the order dated 3-4-2010 passed by the Court of Munsiff, Kangan, where under petitioner (defendant) has been directed to be examined by the Medical Board to be constituted by the Chief Medical Officer so as to ascertain as to whether petitioner (defendant) is potent or not.

2. It is the contention of learned counsel for the petitioner that the petitioner under any circumstances cannot be ordered to subject himself to the medical test for being ascertained his position of potency. It is projected that subjecting the petitioner to medical examination violates his right of privacy so offends Art.21 of the Constitution. In support of this contention, learned counsel has referred to the judgment captioned Ghulam Mohammad Khan v. Mst. Hasina passed by this Court in Civil Revision No. 120/86, reported in SLJ 1988 J&K 103, wherein it has been held as under :_

"The trial Court has no jurisdiction or power under law, even u/S. 151, CPC to order the petitioner to submit to medical examination. The learned trial Court has committed an error by ordering the petitioner to subject to the medical examination."

3. It has been further held that since the petitioner has been examined by the Board, the trial Court is at liberty to act upon the medical evidence available on record and decide the issue of potency of the petitioner on the evidence led by the party on whom onus has been laid.

4. In opposition, learned counsel appearing for the respondent, while relying on the judgment of the Hon'ble Apex Court captioned Sharda v. Dharmpal ( AIR 2003 SC 3450 ) : (2003 AIR SCW 1950), has supported the order impugned. It is the further contention of learned counsel that the respondent (wife) has sought divorce on the count of petitioner (husband) being impotent. There is no other way or method to prove such fact and if the method adopted is not permitted, then the respondent will remain confined in the nuptial knot as tied with the petitioner which would mean that the respondent shall have to suffer all along which, if permitted, will be travesty of justice.

5. Basically parties are married to each other eight years back, during this period no child could be procured, resultantly petitioner has adopted cruel and hostile attitude which constrained the respondent (plaintiff) to institute the suit for dissolution of marriage and the learned trial Court has framed four issues which are reproduced hereunder :_

(1) Whether the defendant has been cruel and hostile towards the plaintiff from the very date of marriage for the reason that the defendant was impotent at the time of marriage? (OPP)

(2) Whether the father of the defendant has admitted the truth about the impotency of his son and assured of medical treatment for his son but subsequently the defect was not cured? (OPP)

(3) Whether the plaintiff in order to marry some other person of her choice had levelled false allegations against the defendant and has also undergone abortion? (OPD)

(4) The relief the parties are entitled to?

6. Essentially the whole controversy revolves round the question of impotency of the petitioner. Now the question for consideration is as to whether at the behest of respondent, petitioner could be ordered to be subjected to medical examination by the Medical Board. The answer in the peculiar facts of the case has to be in affirmative otherwise it shall be difficult for the respondent (plaintiff) to prove the impotency of the petitioner (defendant). The question of invasion to privacy is permissible. The answer is available in para 80 of the judgmen