Calcutta High Court (Appellete Side)
Ashim Bose vs Smt. Sima Bose (Nee Ghosh) on 17 August, 2017
Author: Asha Arora
Bench: Asha Arora
1 17.08.2017 2/skp.
C.O. 2253 of 2013
With
C.A.N. 8786/2015
Ashim Bose vs. Smt. Sima Bose (nee Ghosh)
Mr. Suvadeep Sen .... for the petitioner/husband.
Mr. Biswajit Basu,
Mr. Prosenjit Mukherjee ... for the opposite party/wife.
The grievance of the petitioner/husband is against an order dated 11th April, 2013 passed by the learned Additional District Judge, Fast Track Court No. III Barasat in Matrimonial Suit No. 64 of 2008 whereby the trial Court allowed an application filed by the opposite party/wife for potency test of the husband/petitioner. By the impugned order, the husband/petitioner was directed to appear before the Medical Board of Barasat District Hospital for the aforesaid purpose.
Learned advocate for the petitioner/husband submits that the prayer of the opposite party/wife in her application before the trial Court was for medical examination at the Medical College and Hospital, Kolkata and not at Barasat District Hospital. It has further been submitted that a similar prayer was made by the opposite party/wife in a proceeding under Section 125 of the Criminal Procedure Code as well as in a criminal proceeding under Section 498A of the Indian Penal Code which was rejected by the trial Court.
Mr. Basu, learned advocate appearing for the opposite party/wife submits that he has no objection if the venue for potency test of the husband/petitioner is shifted from Barasat District Hospital to the Medical College and Hospital, Kolkata.
In a matrimonial proceeding arising out of an application under Section 9 of the Hindu Marriage Act filed by the petitioner/husband, the wife/opposite party filed counter-claim seeking annulment of marriage on the ground of impotency of her husband/petitioner with an alternative prayer for a decree of divorce on the ground of cruelty. To determine the issue of alleged impotency, medical examination of the petitioner/husband as sought for by the wife/opposite party is necessary as has rightly been observed by the trial Court. For proper adjudication of the dispute between the parties, the petitioner/husband was directed to appear before the Medical Board for potency test. The impugned order does not suffer from any illegality or irregularity. The petitioner/husband is, however, directed to appear before the Medical Board at the Medical College and Hospital, Kolkata instead of the Medical Board at Barasat District Hospital.
2The order impugned is modified only to the extent that the petitioner/husband shall appear before the Medical Board at the Medical College and Hospital, Kolkata for the purpose mentioned.
The Medical Board shall be constituted by the Superintendent of the Medical College and Hospital, Kolkata for potency test of the petitioner/husband.
Parties shall appear before the Superintendent of the Medical College and Hospital, Kolkata on August 24, 2017 to enable the Superintendent to fix a date for medical examination of the petitioner/husband as mentioned hereinabove.
The Superintendent shall conclude the process of medical examination/potency test of the petitioner/husband and submit a detailed report before the trial Court by 15th September, 2017.
The revisional application being C.O. No. 2253 of 2013 is, thus, disposed of along with the application being C.A.N.8786 of 2015.
A copy of this order shall be communicated forthwith to the Superintendent of the Medical College and Hospital, Kolkata for information and necessary action.
A copy of this order be also sent to the trial Court expeditiously. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of requisite formalities.
(Asha Arora, J.)