Madras High Court
J. Thilagalakshmi vs State. Rep. By Its on 14 September, 2012
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14-09-2012
Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
Criminal Revision Case No. 174 of 2010
J. Thilagalakshmi .. Petitioner
Versus
1. State. Rep. by its
Inspector of Police
All Women Police Station
Ambattur, Chennai
2. D. Selvakumaran .. Respondents
Criminal Revision Petition filed under Section 397 and 401 of Cr.P.C. against the order dated 30.12.2009 passed in Crl.M.P. No. 5382 of 2009 in C.C. No. 24 of 2008 on the file of Judicial Magistrate No.I, Poonamallee.
For Petitioners : Mr. B. Nambi Selvan
For Respondents : Mr. Mohammed Riyaz
Government Advocate (Crl.side) for R1
Mr. T. Munirathinam Naidu for R2
ORDER
This revision is filed by the petitioner challenging the order dated 30.12.2009 passed by the Court below directing the petitioner and the second respondent herein to undergo DNA Test and Virginity test respectively.
2. According to the petitioner, she married the second respondent on 15.12.2006 according to Hindu rites and customs. The marriage was an arranged marriage with the consent of relatives of both sides. According to the petitioner, immediately after the marriage, during the nuptial ceremony, the second respondent could not do anything and there was no intercourse between them. Even during the subsequent days, the second respondent could not have sexual intercourse with the petitioner and therefore the marriage was not consumated owing to the impotency of the second respondent. When this was questioned by the petitioner, she was subjected to harassment and physical attack by the second respondent and his parents. Further, the second respondent and his parents have demanded dowry to the tune of Rs.5 lakhs and demanded the petitioner to bring such money from her parents. On reufsal by the petitioner, she was humilated and subjected to various forms of harassment, therefore, she filed a Complaint before the W-28, All Women Police Station and a case in Crime No. 2 of 2007 was registered for the offence under Section 498-A and 506 (ii) IPC read with Section 4 of the Dowry Prohibition Act and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. The petitioner also filed FCOP No. 1357 of 2007 before the Family Court, Chennai praying for dissolution of the marriage on the ground of impotency of the second respondent. The second respondent also filed a counter denying the various averments made in the FCOP No. 1357 of 2007.
3. As far as the Criminal Complaint is concerned, after investigation, the first respondent filed a charge sheet and it was taken on file as C.C. No. 24 of 2008 on the file of the learned Judicial Magistrate No.I, Poonamallee. The Calander Case was taken on file for prosecuting the case in Crime No. 2 of 2007 which was registered for the offence under Section 498-A and 506 (ii) IPC read with Section 4 of the Dowry Prohibition Act and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. Pending the above C.C. No. 24 of 2008, the second respondent herein has filed C.M.P. No. 5382 of 2009 before the learned Judicial Magistrate No.I, Poonamallee praying to direct the petitioner as well as the second respondent to undergo medical examination to know whether the petitioner is a virgin and the second accused is potent. The said Petition was allowed by the court below against which the present Criminal Revision Petiiton is filed.
4. The learned counsel for the petitioner submits that the prosecution is bound to prove its case through the witnesses as to whether the accused is guilty of the offence punishable under Section 498-A and 506 (ii) IPC read with Section 4 of the Dowry Prohibition Act and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. While so, the present petition directing the petitioner and the second accused to undergo medical test is unnecessary and it has no nexus with the adjudication of the case. Even if the petitioner and the second accused subject themselves to medical examination, the medical report will not be of any use for the prosecution to prove the case against the accused. The court below without considering this aspect has mechanically allowed the application filed by the second respondent herein and he prayed for allowing this Criminal Revision Petition.
5. The learned counsel for the second respondent contends that it is the contention of the petitioner that she is virgin and that the second respondent is impotent. Therefore, in order to disprove that the second respondent is not impotent, medical examination is necessary and unless it is not disproved, the cruelty projected by the petitioner cannot be disproved by the second respondent. Further, the second respondent has filed FCOP No. 1357 of 2007 before the Family Court praying for dissolution of the marriage on the grounds of cruelty and impotency of the second respondent. In fact, the second respondent filed an application in FCOP No. 1357 of 2007 and subjected himself to medical examination and the medical examination clearly indicates that the second respondent is potent. Whereas, the petitioner has not so far undergone any such test and therefore the court below is right in directing both the petitioner and the second respondent to undergo medical examination and he prayed for dismissal of the Criminal Revision case.
6. I heard the counsel for both sides. The only point for consideration in this Criminal Revision Petition is that whether the Petitioner has to undergo virgin test in a case registered against the second respondent under Section 498-A and 506 (ii) IPC read with Section 4 of the Dowry Prohibition Act and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. In order to establish the case against the second accused and other accused, the prosecution has to adduce oral and documentary evidence and subjecting the petitioner to undergo Virgin test has no nexus to either prove or disprove the case of the prosecution. The case of the second respondent herein is that he is potent and in order to prove the same, he has already subjected himself to medical examination and such medical examination may be useful to him to disprove the case of the petitioner in the FCOP No. 1357 of 2007. However, directing the petitioner to undergo virgin test in the present case filed under Section 498-A and 506 (ii) of IPC will not be of any use to the prosecution or the defence to prove or disprove their respective case. The present application filed by the second respondent to direct the petitioner to undergo virgin test is legally not sustainable as it has no nexus with the case projected by the prosecution. Therefore, the Court below ought not to have directed the petitioner to undergo virginity test. Consequently, the Criminal Revision Petition is allowed and the order dated 30.12.2009 passed in Crl.M.P. No. 5382 of 2009 in C.C. No. 24 of 2008 on the file of the court below is set aside.
7. It is brought to the notice of this Court that the petitioner has already filed Crl.OP No. 18318 of 2009 before this Court and this Court, by an order dated 01.09.2009 directed the Court below to complete the trial within a period of six months. It is also brought to the notice of this Court that because of the pendency of this Criminal Revision Petition, the matter has been prolonged.
8. In view of the disposal of the present Criminal Revision Petition, the Court below is directed to comply with the order dated 01.09.2009 passed by this Court in Crl.OP No. 18318 of 2009 and complete the trial within a period of six months from the date of receipt of a copy of this order.
14-09-2012 rsh Index : Yes / No Internet : Yes / No B. RAJENDRAN, J rsh Crl RC No. 174 of 2010 14-09-2012