Karnataka High Court
Sri Siddalingakumar vs Smt C R Yamuna on 18 April, 2024
-1-
NC: 2024:KHC:15678
WP No. 7210 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 7210 OF 2024 (GM-FC)
BETWEEN:
SRI. SIDDALINGAKUMAR
S/O REVANNASIDDAPPA,
AGED ABOUT 45 YEARS,
R/AT 2ND CROSS, 5TH CROSS,
SRINAGAR, KYATHASANDRA
TUMAKURU- 572 104
...PETITIONER
(BY SRI. DHARSHAVARDHAN B G., ADVOCATE)
AND:
SMT.C.R.YAMUNA
W/O SIDDALINGAKUMAR,
D/O RENUKAPPA,
AGED ABOUT 35 YEARS,
R/AT 'RENUKA NILAYA',
Digitally THRIVENI ROAD,
signed by OPP: SSIT, SARASWATHIPURAM
SUVARNA T TUMAKURU -572 105
Location: ...RESPONDENT
HIGH
COURT OF THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
KARNATAKA
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN CL.MIS.NO.311/2013, ON THE FILE OF THE PRL.
JUDGE, FAMILY COURT, TUMAKURU SET ASIDE THE ORDER
DATED:22.11.2023 VIDE ANNEXURE-L THEREIN AND ALLOW THE
APPLICATIONS IA NOS.6 AND 7 FILED BY THE PETITIONER AS
PRAYED FOR, TO MEET THE ENDS OF JUSTICE.
THIS PETITION, COMING ON FOR PRELIMARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
-2-
NC: 2024:KHC:15678
WP No. 7210 of 2024
ORDER
Aggrieved by the order in I.A.No.6 and 7 in Crl.Misc.No.311/2013 dated 22.10.2023 by the Prl. Judge, Family Court, Tumakuru, the husband is before this court. The parties are referred to as husband and wife for the sake of convenience.
2. The marriage was solemnized on 13.03.2011. The husband has filed MC.No.324/2013 under Section 12 of the Hindu Marriage Act for declaring the marriage as null and void, as the wife is suffering from physical deformity and she is incapable of having a relationship where the marriage could not be consummated. It is his case that wife had treated the husband with cruelty. The said petition was contested by the wife where she has denied the allegations and with regard to physical deformity, she has taken a stand that the marriage is consummated. The trial court had decreed the M.C.No.324/2013 declaring that the marriage as null and void.
-3-
NC: 2024:KHC:15678 WP No. 7210 of 2024
3. Aggrieved thereby the wife had filed MFA.No.455/2018 (FC). The same came to be dismissed by order dated 10.07.2023. The appeal was not preferred against the order passed in MFA.No.455/2018.
4. The wife had sought maintenance of an amount of Rs.5,000/- and the court had dismissed the petition on 19.08.2017. The wife had moved this court by filing RPFC No.170/2017 and the same was allowed and on 28.07.2022 the court has set aside the order dated 19.08.2017 and remanded the matter for adjudication on merits. After the matter was remanded to the Court below, the husband has filed the I.A.No.6 and 7 under Order 26 Rule 10(A) R/w Section 151 CPC to appoint an expert doctor from specialized hospital as Court Commissioner to draw the blood sample of the wife in the presence of presiding officer and send the same to the Central Forensic Science Laboratory, Hyderabad to verify whether she is genetically female or not and report the same along with photos and video graphical evidence. I.A.No.7 is filed -4- NC: 2024:KHC:15678 WP No. 7210 of 2024 praying an order to appoint group of expert doctors from specialized hospitals as a Court Commissioner to test and verify the petitioner is having normal female genetic organs or not and whether she is physically female and phonologically fit for normal sexual intercourse in the presence of him and his doctor and report the same to the court. The court below by order impugned had dismissed the two I.As observing that husband has filed MC to declare the marriage as null and void and obtained the decree and in that he himself got examined RW- 2/Dr.Mahalakshmi who has medically examined the wife. He has also examined Dr. Ashok Kumar Devoor. The court below has referred to the Judgment passed in MFA.No.455/2018(FC) wherein the appeal filed by the wife is dismissed. In the said order, the court has observed that the husband himself has examined RW-2/Dr. Mahalakshmi who has medically examined the wife. When the marriage is already declared as null and void, only question to be considered is whether after declaration of marriage as null and void, whether the wife is entitled for -5- NC: 2024:KHC:15678 WP No. 7210 of 2024 maintenance or not. Under these circumstances, the court has held that there is no need for medical examination of the wife as sought by the husband and further the court observed that under these circumstances, again and again driving the wife to undergo medical examination regarding her status of female, definitely amounts to violation of personal life and liberty guaranteed under article 21 of the Constitution of India and also causes humiliation to her, since she is already been examined by the doctor and accordingly dismissed the appeal.
5. Learned counsel appearing for the husband submits that the court below had failed to consider the fact that this is only way in which the fact can be ascertained whether the respondent/wife is a female or not. He submits that as far as the finding of this court in MFA.No.455/2018 is concerned, though it is in his favour those finding are concerned, he is going to file an appeal against that. It is submitted that the court below failed to understand the purpose for which the application is filed -6- NC: 2024:KHC:15678 WP No. 7210 of 2024 and prejudice that would be caused to the husband if the application is not allowed by the court.
6. Having heard the learned counsel for the petitioner, perused the entire material on record. The undisputed facts of this case are that basing on MC.No.324/2013 filed by the husband, the court below passed the judgment and decree dated 04.11.2017 declaring the marriage as null and void. The grounds that petitioner is taking are not the new grounds and during the pendency of the MC proceedings he has examined some of the doctors and Dr. Mahalakshmi who was examined as PW-2 and also marked Ex.P.10. Whatever the grounds the petitioner is taking now, it was always open to him to raise these grounds. No such application was filed during the pendency of the petition. The court below had rightly observed that at this point of time, when the marriage between the parties is declared as null and void, in this application what remains to be adjudicated is whether in a case where marriage is declared as null and -7- NC: 2024:KHC:15678 WP No. 7210 of 2024 void, whether the wife is entitled for maintenance or not. All these aspects which the husband wants to prove in this case are not relevant factors for the court to consider while granting the maintenance.
7. The court below by way of a detailed order had analysed all the facts and dismissed the application filed by the husband. This court finds no reasons to interfere with the well considered order passed by the court below.
8. Accordingly the writ petition is dismissed.
SD/-
JUDGE TS List No.: 1 Sl No.: 33