A matrimonial court may order medical examination for impotence inquiries without infringing personal rights, provided there's prima facie evidence.

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE HIRDESH ON THE 18^th OF AUGUST, 2025 MISC. PETITION No. 2286 of 2025 RAHUL KAURAV Versus NISHA KAURAV W/O RAHUL KAURV Appearance:

Shri Chetan Kanungo - Advocate for the petitioner.

Shri Anuraj Saxena, Advocate for respondent.

ORDER This is a misc. petition under Article 227 of the Constitution of India , assailing the order dated 12-04-2025 (Annexure P-1) passed by Principal Judge, Family Court, Gwalior in Case No. 1308 of 2023 (HMA).

It is the case of petitioner that his marriage with respondent was solemnized on

13-12-2022 at Gwalior. He had filed a petition under Section 12 of the Hindu Marriage Act for declaring the marriage as null and void on the ground that his wife- respondent has a medical condition of Hypo-plastic uterus/rudimentary uterus and primary amenorrhea and she is not capable of having cohabitation and get pregnant. He has also filed an application under Section 151 of CPC read with Section 39 of the Evidence Act , seeking direction for taking medical test of his wife in order to determine her potentiality and fertility, which is essential for decision of petition under Section 12 of the HM Act. The very foundation of the basis of which petition under Section 12 of the HM Act is impotency of the wife and accordingly, in order to substantiate the said ground, the medical test of his wife- respondent is necessary. In support of his contention, medical documents have been filed and petitioner has relied on the decision of Smt. Surbhi Trivedi vs. Gaurav Trivedi (MP No. 4820 of 2018) and order dated 15th Signature Not Verified Signed by: MAHENDRA of February, 2023 passed by learned Single Judge of this Court at Principal Seat Jabalpur in the case of Smt. Vimla Devi vs. Bhuvaneshwar Prasad Mishra (WP No.

8247 of 2016).

On the other hand, learned Counsel for respondent opposed the contentions of petitioner and submitted that right of respondent should be infringed as regards her privacy, therefore, the trial Court has rightly rejected the application of petitioner. Heard learned Counsel for the parties. Perused the impugned order as well as documents available on record.

The moot question comes before this Court as to whether medical test/examination of husband/wife is necessary in order to determinate as to whether he/she is impotent or not. The Hon'ble Apex Court in the case of Sharda vs. Dharampal (2003) 4 SCC 496 in para 80 and 81 has held as under:-

'' 80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy.

81. To sum up, our conclusions are:

1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.''

Thereafter, the judgment of the Apex Court in the case of Sharda Dharampal (supra) was considered by this Court in the case of Amol Chavhan vs. Smt. Jyoti Chovhan 2012 (1) MPLJ 205 and this Court held in paragraphs 10 and 11 as under:-

''10. The Apex Court in the aforesaid judgment has relied on Sharda vs. Dharmpal, reported in (2003) 4 SCC 493 to hold that medical examination by experts is permissible to ascertain the truth of the matter. In view of this, question No. 1 deserves to be answered against the petitioner. The Court below took a plausible stand and, therefore, cannot be interfered in this proceeding under Signature Not Verified Signed by: MAHENDRA Article 227 of the Constitution.

11. So far the issue regarding infringement