Uttarakhand High Court
Ameet Bhuvan vs Smt Swati Bhaskar on 10 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 111 of 2014
Ameet Bhuvan .........Defendant/Appellant
Versus
Smt. Swati Bhaskar .......... Plaintiff/Respondent
Present: Mr. S.K. Posti, Advocate for the appellant.
Mr. D. Barthwal, Advocate for the respondent
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 27.06.2017 Delivered on : 10.07.2017 Per - Hon'ble Sharad Kumar Sharma, J.
This is husband's appeal invoking Section 19 of the Family Courts Act, questioning the validity of the judgment dated 09.10.2014 passed in Suit No. 342 "Smt. Swati Bhaskar vs. Ameet Bhuwan". By the judgment impugned the Suit filed by the plaintiff- respondent, invoking Sections 11, 12, 25 and 27 for declaring the marriage to be void, as well as, she has simultaneously sought a relief for the grant of permanent alimony under Section 25 of the Hindu Marriage Act and settlements of the property by invoking Section 27 of the Hindu Marriage Act, 1955.
2. The plaintiff-respondent on 13.05.2013 instituted the Suit for following relief :-
d ;g fd fgUnw fookg vf/kfu;e 1955 dh /kkjk 12 dh 'kfDr;ksa dk iz;ksx fd;k tkos rFkk i{kdkjksa dk fookg laca/k "kwU;dj.kh; fookg dh vkKfIr ds fy, vkKIr djrs gq, i{kdkjksa dk fooko laca/k fnukad 14-02-2013 "kwU; ,oa "kwU;dj.kh; ?kksf'kr djrs gq, fujLr dj fn;k tkos rFkk fgUnw fookg jftLVkj gSnjkckn dks bl fujLrhdj.k dh lwpuk izsf'kr dh tkosA 2 [k ;g fd fgUnw fookg vf/kfu;e 1955 dh /kkjk 25 dh "kfDr;ksa dk iz;ksx fd;k tkos rFkk izfroknh dks vknsf"kr fd;k tkos fd og orZeku okn dh frfFk ls vadu 25]000@& :i;s izfrekg thou fuokZg esa okfnuh dks vnk djsa rFkk blds dkj.k cusA fodYi esa vadu 20]00]000@& :i;s dh /kujkf"k ,d eq"r okfnuh dks vnk djsa] rkfd okfnuh viuk Hkj.k&iks'k.k dj ldsA x ;g fd fgUnw fookg vf/kfu;e 1955 dh /kkjk 27 dh "kfDr;ksa dk iz;ksx fd;k tkos rFkk izfroknh dks vknsf"kr fd;k tkos f dog okn&i= dh lwph esa of.kZ lkeku okfnuh dks ekuuh; egksn; ds vkns"k ls 15 fnu ds vUnj okfil djs vkSj bldk dkj.k cusA
3. For the purposes of declaring marriage to be void under Section 12 of the Act, she contended that the marriage held on 14.02.2013 since could not be consummated, hence may be declared as void. According to the plaintiff-respondent their marriage was solemnized on 14.02.2013 at Hyderabad, in accordance with the Hindu customs and rituals and subsequently, it was registered before the Registrar of Marriage on the same day. The marriage between the parties to the Suit was settled on the basis of the publication and subsequent correspondences made on telephone between the families, in which they have projected while negotiation were being held, it revealed the defendant happens to be a person belonging to a higher income group and has a sufficient income from various other allied businesses in which he was involved. The marriage was settled by way an engagement ceremony held on 13.02.2013 and solemnized on 14.02.2013 at Hyderabad.
4. The ground for seeking dissolution of marriage by the plaintiff was that after the marriage held on 14.02.2013, the same was not consummated, as the appellant has shown reluctance in entering into any physical relationship with the plaintiff-respondent. When the same was objected by him, it revealed to her later that he was physically impotent and not in a position to have sexual relationship with the plaintiff-respondent.
35. On being faced with questions about the incapacity to enter into any physical relationship. The husband got outraged and became angry and misbehaved on 21.04.2013. As the marriage between the parties has not being consummated, she filed a Suit for declaring the marriage to be void under Section 11 of the Hindu Marriage Act. She also claimed maintenance of Rs. 25,000/- per month out of the total income of the appellant. As projected by wife that he was earning Rs. 90000/- per month she submitted that she may be granted a one time permanent alimony to the tune of Rs. 20.00 lacs so that she may be able to maintain herself in life.
6. The appellant appeared and filed his written statement. In his written statement, he made efforts to deny the allegations about impotency and his incapacity to enter into physical relationship. It was rather contended that it was the plaintiff-respondent who has expressed her unwillingness to have physical relationship. It was not due to any impotency. He further denied that at no point of time, the plaintiff-respondent expressed her anguish due to purported story of the impotency of the appellant nor he contended that any such type of complaint was raised by the plaintiff-respondent. To support his contention, he stated that rather the wife was not willing to have in physical relationship.
7. In para 18 and 19 of the written statement, he has vaguely denied the contents of para 18 and 19 of the plaint pertaining to grounds narrated therein for the purposes of invoking Section 25 and Section 24 for grant of pendent elite maintenance. In the written statement the fact that has come on record by pleading was that there was no cohabitation, and that the marriage has taken place under 4 undue pressure of the parents of the plaintiff, as they wanted her to marry with some other boy of her choice, for which the parents of the plaintiff were not willing.
8. In para 31 of the written statement, a very vague reply was extended with regards to impotency, saying that he was not incapacitated from indulging into sex due to impotency and to controvert false allegations leveled against him by the plaintiff, in the said paragraph. The defendant referred to the medical tests done by the medical experts at Bangalore and he was found as to be potent, and capable to have sexual relation with female. Para 31 of the written statement is quoted herein below:-
"31. The defendant is not impotent. He is fully potent and has fully capacity to indulge in sex. To controvert such false allegations levelled against him by the plaintiff, the defendant went under medical tests done by the Medical Experts at Bangalore and was found potent."
9. On the exchange of the pleadings, the learned trial court framed the following issues on 09.10.2014:-
1- D;k foi{kh us ;kph ls fookg ds fy, Ny ls lgefr yh gS vkSj foi{kh fookg ds le; laHkksx djus esa vl{ke Fkk rFkk i{kdkjksa dk fookg iw.kZ ugha gks ik;k\ 2- D;k ;kph dk fookg fnukad 14-02-2013 "kwU; ,oa "kwU;dj.kh; ?kksf'kr gksus ;ksX; gS\ 3- D;k ;kph foi{kh ls thou fuokZg ikus dh vf/kdkfj.kh gS] ;fn gkWa rks fdl nj ls fodYi esa D;k ;kph ,d eq"r thou fuokZg izkIr djus dh vf/kdkfj.kh gS] ;fn gkaw rks fdruh\ 4- D;k ;kph okni= dh lwph esa of.kZr lkeku ;k mlds led{k /kujkf"k ikus dh vf/kdkfj.kh gS] ;fn gkaw rks fdruh\ 5- D;k ;kph okafNr vuqrks'k izkIr djus dh vf/kdkjh gS\
10. The prime issue which is for consideration before this Court is the issue no. 1 with regards to impotency as to "whether at the time of marriage, he was competent to enter into sexual relationship? Whether on the basis of finding on issue no. 1, the marriage dated 14.02.2013 deserves to be declared as void?
511. The appeal in question is primarily confined to the competence of the appellant to enter into sexual relationship and with regards to the impact of the medical certificate, submitted by the appellant in the proceedings before the court below pertained to period prior in time to the litigation. To support the contention, the plaintiff-respondent appeared in the witness box as PW1 and examined herself and the defendant-appellant appeared as DW-1. The appellant, to support his version, and to establish that he is not suffering from impotency has placed on the record, the list of documents by way of paper no. 32 Ga, wherein 7 reports have been filed.
12. What is relevant to be seen is that when the case has proceeded before the court below to settle the issue no. 1, pertaining to the impotency and the competence of the appellant to have sexual intercourse, the plaintiff filed an application on 13.12.2013, praying before the court below to ask the defendant to undergo the potency test in Doon Hospital, Dehradun. This application was opposed by the appellant.
13. When on three consecutive dates the appellant had not presented himself before Doon Hospital, the Court rightly observed and came to a conclusion that the appellant was not interested in getting the potency test conducted and the said issue was directed to be decided at the time of final hearing.
14. The Hon'ble Apex Court in its judgment rendered in AIR 2002 SC 2582, "Praveen Mehta v. Inderjit Mehta" although deals with a situation where a wife refuses to cooperate with her 6 husband in sexual intercourse and also refuses to get herself medically examined or undergo medical treatment and that she has abused and misbehaved with the husband and friends and other relatives, thereby depriving of the husband to normal cohabitation, this will amount to be mental cruelty.
15. In the instant case, it is the husband, who despite of the court's order avoid to undergo the medical test, this avoidance to undergo the medical test will amount to the refusal for medical test. Such a refusal will amount to be a mental cruelty. In the said judgment while dealing with the concept of mental cruelty it has been held that it is a state of mind and feeling, thus the cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour towards the spouse and one another. In the same judgment, Hon'ble Apex Court has held that a wife of non cooperative attitude to have sex and refusing for a medical treatment, abusing and misbehaving with the husband even with his friends would be a mental cruelty. Para 19, 20 and 21 of the said judgment are reproduced herein below:-
"19. Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that if will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91 ).
20. In the case in hand the foundation of the case of 'cruelty' as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated.7
When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behavior towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane (supra), observed : "Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment".
21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
16. In another judgment rendered by Hon'ble Apex Court reported in AIR 2007 SC 1426 "Mayadevi v. Jagdish Prasad" it has been provided that to prove a cruelty, may be physical or mental in proceedings under Section 13, is not to be proved beyond a reasonable doubt. The concept of proof beyond the reasonable doubt is applicable only in criminal matters and not in civil mattes and particularly in the matters in which delicate personal relationship as those of husband and wife is involved. Denying of the evidence on record, it is the Court's duty to come to the conclusion about the probabilities in a case as to whether mental or physical cruelty has 8 been established or not? Such a cruelty has an effect on the mind of the concerned spouse because in an act on omission or commission of the either party and thus the cruelty may be physical or corporeal or may be mental. In the cases of mental cruelty like that with allegation of impotency, there cannot be a tangible or direct evidence and in such cases courts are required to probe into the mental process and mental effect of incidents which are brought in evidence. Para 9 of the said judgment is reproduced herein below:-
"9. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of material ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and /or an inference can be legitimately drawn that the treatment of the spouse is such that it causes as apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil mattes and certainly not to mattes of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."
17. The identical situation reported in 1994 (2) MhLj 1513 a Division Bench of Bombay High Court in the case of V(wife) vs. S(Husband) has held that wherein the issue on impotency is involved for the purposes of achieving the satisfactory sexual relationship, the parties against whom the charges of impotency is made, when he refuses or omits to submit himself or herself from 9 requisite medical test an adverse inference has to be drawn in view of the provisions contained under Section 114 of the Indian Evidence Act. As it has been held out in the judgment reported in AIR 1980 Ker. 131 and AIR 1970 Mad. 103, Rel. (para 11). Para 11 of the said judgment is reproduced herein below:-
"11. Next, Shri Manudhane has relied on a decision of the Allahabad High Court in the case of Jagdish Lal vs. Smt. Shyama, AIR 1966 All. 150, wherein the Court has analysed the requisite ingredients of a charge of impotency. The Court has also gone into the question of what would be the reasonable excuse for non-consummation. In the present case, it was sought to be contended that the medical condition of the husband, namely, hernia, was a possible causative factor for the non- consummation. Unfortunately, the doctors did not support this view in their evidence and Shri Manudhane is right in relying on this decision which conclusively states that in such cases of non-consummation where there is no reasonable ground set out that an adverse inference must follow. Shri Manudhane has thereafter drawn our attention to two decisions, the first of them being in the case of Mary Kurian vs. T.T. Joseph, AIR 1980 Ker. 131; and the second being in the case of J. Anthony vs. M.S. Ammal, AIR 1978 Mad. 103. In both these cases, the Courts were concerned with a situation where the party against whom charges were made either refused or omitted to submit to a requisite medical examination. The Court did hold, and in our considered view very rightly, that in such instances, an adverse inference would have to be drawn."
18. The Madras High Court in AIR 1970 p. 103 has rendered that taking into consideration the provisions contained under Section 114 of the Indian Evidence Act that whether a charge of impotency is made on either of the parties applies and refuse or omit to requisite medical examination an adverse inference has to be drawn.
19. The aforesaid citation was subsequently followed by in AIR 1980 Kerala High Court p. 131.
20. Learned counsel for the respondent to justify the decree under Section 11 and 12 of the Hindu Marriage Act has placed reliance on the judgment rendered by Hon'ble Delhi High Court 10 reported in ILR (1974) II Delhi in the case of Shrimati Sucharita Kalsie vs. Rajinder Kishore Kalsie. In the said judgment, the Delhi High Court has held that when an individual is generally claimed by the appellant herein who projects to be an impotent with respect to his own spouse and is unable to consummate marriage, this act of projecting to be incompetent to consummate marriage will fall to be an impotency under Section 12(a) of the Act, would be taken as to be cruelty.
21. In the cases of marriage, physical relationship or mental relationship is a condition which is persistent and regular to make the consummation of marriage essential. The practical incapability has to be seen by the court below although when such type of issue crops up in litigation, there is no yardstick provided, which could determine the standard of proof to determine the potency or impotency. Thus issue has to be settled on the basis of incorporated testimony or medical inputs and by the conduct of the parties which has to be pleaded in the absence of their being in denial of the said fact.
22. In the instant case, since there was non compliance of Section 114 by the appellant and since there was a failure on its part to enter into medical examination as directed by the court, the judgment and decree has rightly been rendered. The Hon'ble Apex Court in its judgment rendered in AIR (1981) 4 SSC 250 "Sirajmohmedkhan Janmohamadkah vs. Hafizunnisa Yasinkhan and another" in its para 30 and 34 has held as under :-
"30. The learned Judge has put his finger on the correct aspect and object of mental cruelty. The fact that this case did not arise out of the proceedings under Section 125 makes no difference because we have already observed that the concept of cruelty remains the same whether it is a civil case or a criminal case or a case under any other similar Act.11
The general principles governing acts constituting cruelty-legal or mental-ill-treatment or indifference cannot vary from case to case though the facts may be different.
34. Thus, from a conspectus of the various authorities discussed above and the setting, object and interpretation of the second proviso to Sub- section (3) of Section 125 of the Code of 1973, we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. We hold that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife's refusal to live with her husband and the wife would be entitled to maintenance from her husband according to his means. In these circumstances, therefore, it would be pusillanimous to ignore such a valuable safeguard which has been provided by the legislature to a neglected wife.
23. The Hon'ble Apex Court in the aforesaid judgment has also dealt with the aspect as to what would constitute to be the just ground for refusal by the wife to live with her husband. His lordship has held that the interpretation of just ground may not be accedes but may be illustrated and self-explanatory, depending upon the circumstances of each case which imbibes within its physical, mental and legal cruelty. Thus, incompetence do not exclude the impotency of the husband when he is unable to do an act and it was treated to be the just ground on which the wife can refuse to live with her husband as contemplated by the points pervade. For the purposes of pervade para 12 and 20 of the said judgment is quoted herein below :
12. The learned Judge seems to have been under the impression that so far as the provisions of Section 488 of the Code of 1898 were concerned they had no bearing on conjugal relations between the husband and the wife. With great respect to the learned Judge we are unable to agree with this process of reasoning. In fact, the fundamental basis of the ground of maintenance under Section 488 is conjugal relationship and once conjugal relationship is divorced from the ambit of this special provision, then the very purpose and setting of the statutory provision vanishes. In the matter of the Petition of Din Mohammad MANU/UP/0100/1882 : ILR [1883] All 226. Mahmood, J.
very pithily and pointedly observed as follows:
The whole of Chapter XLI, Criminal Procedure Code, so far as it relates to the maintenance of wives, contemplates the existence of the conjugal relations as a condition precedent to an order of maintenance and, on general Principles, it follows that as soon as the conjugal 12 relation ceases, the order of maintenance must also cease to have any enforceable effect.
(Emphasis supplied)
20. A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated, by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These, circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband's parents or relations, such an apprehension also would be manifestly a reasonable justification for the wife's refusal to live with her husband. Instances of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive.
24. In a judgment rendered by Hon'ble Rajasthan High Court at Jaipur in the case of Renuka vs. Rajendra Hada in its para 12 and 13 has held as under :
"12. The questions for consideration in the instant appeal are:-
(i) Whether a matrimonial court had power to order appellant to undergo medical test?
(ii) If despite the order of the Court, the appellant refused to submit herself to medical examination whether the court could draw adverse inference against her?
(iii) Whether the respondent has succeeded in satisfactorily establishing that the appellant was impotent at the time of marriage and at the time of filing of the petition?
13. We find answer of these questions in two decisions rendered by the Hon'ble Supreme Court in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was indicated that if despite an order passed by the Court a person refuses to submit himself to such medical examination, a strong case for drawing an adverse would be made out. Section 114 of the Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidence in the power and possession. The conclusion drawn by the Apex Court are as under :-
(i) A matrimonial Court has the power to order a person to undergo medical test.
(ii) Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Constitution.13
(iii) 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 inference against him.
25. In the above said judgment Renuka vs. Rajendra Hada (supra), it has been held by the Division Bench, if the appellant, despite the court's order refuses to submit medical examination, an adverse inference could be drawn by the Court. Such a circumstance was identical in the instant case where despite the court's orders dated 20.02.2014, 04.03.2014 and 19.03.2014, the appellant has not taken the test. Rather reliance on the question and answer which he procured at a later stage from the hospital from which he was supposed to get himself medical examined.
26. This judgment has considered the impact of the judgment rendered by Hon'ble Apex Court in Sharda v. Dharmpal, (2003) 4 SCC 493 which has indicated that if a person despite of the Court's orders refuses to submit himself to the medical examination, a strong inference is to be withdrawn against him in view of the provisions contained under Section 114 of the Indian Evidence Act. Para 80 of the said judgment is reproduced herein below:
"80. In the response of the Privacy Commissioner of Canada to Department of Justice consultation paper Obtaining and Banking DNA Forensic Evidence, it is stated:
"3. Collecting DNA from suspects DNA evidence should not be collected from a suspect unless the information is relevant to a specific crime in question. For example, it would be appropriate to obtain a DNA sample from a suspect where DNA evidence is left at the scene of the crime and the suspect's DNA is needed to prove the suspect's involvement.
DNA evidence should not be collected from suspects as a matter of routine. To do so cause an unnecessary privacy intrusion; in the vast majority of criminal cases DNA evidence will contribute 14 nothing to the investigation. Thus, it would not be appropriate for Parliament to give blanket authority to collect DNA samples from all persons suspected of indictable offences. DNA should also not be collected from a suspect of investigators have no DNA evidence with which to compare the suspect's sample.
Nor would a DNA sample from the suspect be necessary if the suspect admitted guilt. However, as a practical manner, the DNA evidence might be critically important in getting the suspect to admit guilt in the first place.
As well, there should be reasonable grounds for suspecting that the person committed the offence before taking the DNA sample. It would not be acceptable to require all men in a given community to submit DNA samples to solve a specific crime.
Broadly-based testing of whole groups within a community would represent an unjustifiable intrusion into the lives of too many innocent people. As a further privacy safeguard, DNA evidence should be collected from a suspect only if a judge authorizes the collection.
In our 1992 report, Genetic Testing and Privacy, we discussed limiting the collection of DNA samples to cases involving criminal violence. The types of violence crimes for which DNA samples might be collected should be set out in legislation. The list of violent crimes set out in New Zealand's recently introduced Criminal Investigations (Blood Samples) Bill offers an example of the types of crimes for which DNA testing might be considered in Canada. It may also be appropriate to allow the collection of samples for other crimes, such as conspiracies to commit offences involving violence. For example, it should be lawful for samples to be taken if DNA evidence could help convict someone suspected of planning a terrorist act or murder (perhaps the suspect had left DNA on a stamp he licked and attached to a letter implicated in the crime)."
27. A single judgment of Hon'ble Jammu and Kashmir at Srinagar in the case of Mohammad Latief Bhat @ Naik Vs. Mst. Shamima has dealt with the identical issue as to what has to be the impact if despite of the Court's order a party to the proceedings refuses to submit himself to a medical examination or undergoing the tests of potency, a strong inference is to be withdrawn against him. Para 6 and 7 of the said judgment is reproduced herein below:
15"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 judgment rendered by the Hon'ble Apex Court in MANU/SC/0260/2003 : AIR 2003 SC 3450. Same is quoted here-under:
80. 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 Article 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 Article 21 of the Constitution of India and with the extensive interpretation, of the phrase "personal liberty" this right has been read into Article 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 conflict with the so-called right to privacy of the Respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.
7. Now again question is as to whether in case of default on the part of Petitioner in subjecting himself to the medical examination, adverse inference can be drawn. Same is answered by para 83 of the said judgment which reads as under:
83. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. S. 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession."
28. The case was taken on 17.04.2014 before the court below whereby the appellant has tried to place the records of certain 16 documents by which he contends to show that he was not suffering from any such problem of impotency. To support his version, he placed the records and the documents by a list dated 05.02.2014 i.e. a Consultant Radiologist report dated 01.06.2013 pertaining to "Penile Doppler Study". The second test which was conducted on 01.06.2013 was "Scrotal Doppler Study". Then third test dated 28.05.2013 "Biochemistry" test and on the same day "Endocrinology", test as well as the test of clinical pathology.
29. What is relevant at this juncture, is that the court below, for the first time, called upon the appellant after framing the issues, to undergo the potency test on 20.03.2014. The appellant had not participated with the potency test. Subsequently, when the documents were filed by the appellant on 05.02.2014 contains all the reports which were prior to 24.02.2014 i.e. first date fixed by the court for the potency test. Although, these reports, which were prior in time, were filed later. A direction was issued to the appellant by the court to undergo the potency tests. Besides this, the said reports were not proved by the appellant by producing doctor in the witness box. All this shows that he was not a patient of impotency. Rather to the contrary, after 19.03.2014, the appellant had filed an application on 08.07.2013 under the Right to Information Act before the Information Officer of the Doon Hospital, Dehradun, who has responded back by giving the information on 23.07.2013, showing that the tests on impotency is not available in Doon Hospital hence the test by Doon Hospital cannot be conducted.
30. It is not the case of the appellant in compliance of the order of the court below, he has presented himself for undergoing the test in Doon Hospital. It was rather subsequent to the finding 17 recorded on 19.03.2014, to the effect that despite of willingness extended on 05.02.2014, to undergo the impotency test, since the appellant is not interested, it would not be a case where the impotency test could not be conducted. Because of the fact that there was no facilities available in the Doon Hospital, because the appellant himself has not complied with any order and never presented himself for the impotency test before Doon Hospital.
31. Another argument which was raised by the counsel for the appellant was that since the appellant is privately engaged, there is a dearth of time for him to appear for the test as directed by the court below, before the competent medical authority. The reason of shortage of time is not acceptable. More particularly, when the earlier conduct shows that he had participated in the medical tests, there was no reason why he cannot appear before the medical authority to undergo the test of potency in compliance of court's order.
32. The controversy has to be looked into from another angle. The appellant has tried to place reliance on the report prior in time, and it was never pleaded by the appellant as to why and under what circumstances the tests were conducted by him earlier and why the reports of pathology was not placed on the record earlier when they were obtained prior in time? Even according to the findings and the statements recorded by the court below, as a matter of fact, there had been no sexual intercourse and it was only an oral sexual relationship established between them and thus the finding recorded on issue no. 1 by the court below after considering the recorded statement that the appellant was not competent to enter into sexual relationship.18
33. This also further stands fortified because of the unwillingness of the appellant to undergo the tests on the basis of the direction issued by the court below, which was necessary to settle the issue no. 1 has placed reliance on the medical tests held prior in time.
These documents, apart from the fact being prior in time, were not proved by producing the doctor, who has issued certificate by producing him in the witness box. Hence, on this ground, the learned family court has rightly decreed the Suit under Section 11 and 12 of the Act, held the marriage to be void as husband to prove that he was potent and capable to enter into sexual relationship.
34. For the purposes of considering issue nos. 3 and 4 pertaining to grant of alimony and for settlement of articles, the court has held apart from the fact that the appellant is earning Rs. 50,171/- per month which is based upon the statement of the wife in her examination-in-chief. Besides the above source, there are various other sources from which the appellant has having income. He is highly qualified and employed and looking to the fact that the marriage was organized at the Hotel Taj, Hyderabad, the court below rightly awarded the permanent alimony of Rs. 10,00,000/- to the respondent, accepting the financial status of the husband.
35. Since issue no. 4 has been decided against the plaintiff- respondent and no appeal has been preferred by her, there is no necessity to deal with the findings on the issue.
36. On account of the fact that the evidences which establishes that the appellant was suffering from impotency and that the conduct of the appellant shows that he made no efforts to 19 establish that he was potent, the judgment and decree passed by the court below dated 09.10.2014 calls for no interference by this Court under Section 19(1) of the Hindu Marriage Act. Hence the appeal fails and is dismissed.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
10.07.2017
Mahinder