Madras High Court
M.Ramanujam vs R.Manimegalai on 27 June, 2018
Author: P.Velmurugan
Bench: P.Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2018
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRP(PD) No. 3402 of 2017
and CMP.No.15854 of 2017
M.Ramanujam .. Petitioner
Vs.
R.Manimegalai .. Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of Constitution of India to set aside the order of the learned III Additional Family Court, Chennai, dated 12.08.2017 made in I.A. No.1025 of 2016 in O.P. No.2209 of 2012 and allow this Civil Revision Petition.
For Petitioner : M/s.T.C.S. Rajachockalingam
For Respondent : M/s.P.Uma
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O R D E R
The prayer sought for in the present Civil Revision Petition is to set aside the order passed by the learned III Additional Family Court, Chennai, dated 12.08.2017 made in I.A. No.1025 of 2016 in O.P. No.2209 of 2012.
2. Heard Mr. T.C.S.Rajachockalingam, learned counsel for the petitioner and M/s.P.Uma, learned counsel for the respondent.
3. The brief facts of the case is that the respondent herein has filed petition in O.P. No.2209 of 2012 before the Family Court, Chennai for divorce on the ground of impotency,cruelty and desertion under Section 13(1)(i-a)(i-b) of Hindu Marriage Act 1955. During pendency of the said petition, the respondent had filed an application in I.A. No. 1025 of 2016 to direct the revision petitioner to undergo potency test to prove that he is capable to perform his marital obligation and to file a report. After giving opportunity to the either parties, the Family Court allowed the said application and directed the revision petitioner to undergo potency test in the Government General Hospital, Chennai.
4. Aggrieved over the above said order passed by the Family Court, Chennai, the revision petitioner/husband has preferred the present revision petition.
5. The learned counsel for the revision petitioner vehemently contended that the marriage took place in the year 1998 and after five years the respondent /wife filed a petition for divorce on the ground of cruelty in the year 2012 in HMOP.No.2209 of 2012 on the file of III Additional Family Court, Chennai and also filed an interim application to direct the revision petitioner to under go potency test in the year 2016.
6. The learned counsel for the petitioner further submitted that at the time of filing HMOP, the age of the revision petitioner was 46 years, now the age of the revision petitioner is 56 years. He has also submitted a study report with regard to the Erectile Dysfunction (ED) which reads as follows;
Several studies have looked at the prevalence of ED. The Massachusetts Male Again Study reported a prevalence of 52%. The study demonstrated that ED is increasingly prevalent with age. At age 40, approximately 40% of men are affected. The rate increases to nearly 70% in men aged 50 years. The prevalence of complete ED increases from 5% to 15% as age increases from 40 to 70 years. Age was the variable most strongly associated with ED.
7. The learned counsel further submitted that since the petitioner is aged about 36 years at the time of marriage and now the petitioner is aged about 56 years even if he under gone the medical test, this will not be helpful to decide the HMOP on the ground of potency. The Family Court failed to consider this aspect and allowed the petition.
8. The learned counsel for the respondents submitted that even prior to the marriage, the revision petitioner had undergone surgery and due to that surgery, he lost his ability to have physical relationship and he could not continue the marital life. This fact was suppressed by the petitioner herein and even after filing the petition for divorce, the petitioner herein has not filed any documents to prove his potency. However, the revision petitioner has obtained certificate from a private doctor Mr.M.R.Pari to establish that even prior to the marriage he was potent. The Family Court has considered all these aspects and allowed the petition, directing the respondent/revision petitioner herein to undergo potency test in Rajiv Gandhi Government Hospital, Chennai to prove the capability of performing his marital obligation and to file a report. The order passed by the Family Court does not warrant any interference.
9. It is not in dispute that the revision petitioner is the husband and respondent is the wife and the marriage between the parties took place in the year 1998. The respondent/wife had file a petition for divorce in HMOP. 2209 of 2012 under Section 13(1)(i-a),(i-b) of the Hindu Marriage Act 1955 on the file of Family Court, Chennai. During pendency of the said petition, the respondent/wife had filed an interim application to direct the revision petitioner/husband to undergo medical test.
10. It is contended by the learned counsel for the revision petitioner that there is no requirement for the medical test and it is not necessary at this age. This court considered the fact that the revision petitioner/husband had undergone surgery before his marriage and at that point of time, he may lost his potency, thereby he suppressed this fact. Since, the revision petitioner has already produced medical certificate to show that he had undergone medical test with private doctor, it will not cause prejudice to the revision petitioner to undergo a medical test before the Medical Board. This Court finds that there is no perversity in the order passed by the learned III Additional Principal Judge, Family Court, Chennai.
11. In the result, the Civil Revision Petition is dismissed and the revision petitioner is directed to undergo medical test as directed by the trial Court. No costs. Consequently, connected Miscellaneous Petition is closed.
27.06.2018 Internet : Yes/No Index : Yes/No ak To The III Additional Principal Judge, Family Court, Chennai. P.VELMURUGAN J., ak CRP(PD) No. 3402 of 2017 and CMP.No.15854 of 2017 27.06.2018