Karnataka High Court
Smt. H.B.Asha vs Sri Basavaraj Patel on 26 March, 2024
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NC: 2024:KHC:12457
WP No. 18013 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 18013 OF 2023 (GM-FC)
BETWEEN:
SMT. H.B. ASHA,
W/O BASAVARAJ PATEL,
D/O H.R. BASAVARAJAPPA,
AGED ABOUT 34 YEARS,
R/AT NO.816/18P,
3RD CROSS, 2ND STAGE,
SHIVAKUMARASWAMY BADAVANE,
DAVANAGERE - 577 005.
...PETITIONER
(BY SRI. SIDDAMALLAPPA P.M., ADVOCATE)
AND:
SRI. BASAVARAJ PATEL,
Digitally signed S/O HALASIDDAPPA,
by SUVARNA T AGED ABOUT 38 YEARS,
Location: HIGH FINANCE SMART FINANCIAL BANK,
COURT OF
KARNATAKA HOLALAKERE TOWN,
CHITRADURGA DISTRICT - 577 557.
...RESPONDENT
(BY SRI. CHANDRA CHOODA M.B., ADVOCATE FOR
SRI. HIREMATH N.S., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 31/07/2023 PASSED IN M.C. NO.
439/2019, PASSED BY LEARNED FAMILY COURT, DAVANAGERE
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NC: 2024:KHC:12457
WP No. 18013 of 2023
AS PER ANNEXURE-E AND FURTHER ORDER TO ALLOW THE
APPLICATION FILED UNDER ORDER-XVI, RULE-10A CPC
(ANNEXURE-C) AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the Order passed by the Family Court, at Davanagere, in I.A.No.XIII in M.C.No.439/2019 dated 31st July 2023, the wife is before this Court.
2. The parties are referred to as wife and husband for the sake of convenience.
3. The petitioner-wife has filed I.A.No.XIII to appoint a Commissioner to carry out scientific investigation on the husband and to ascertain the sexual potentiality of the husband and to file his report. It is her case that she has filed he petition to annul her marriage with the respondent-husband, performed on 02.01.2019 on the ground of impotency based upon his nature, conduct, attitude and physical deformity. As such, it is required to have a scientific examination on him.
4. It is further stated by the wife that on nuptial day, the husband did not exhibit any sexual interest or urge and as -3- NC: 2024:KHC:12457 WP No. 18013 of 2023 such, it is impossible for her to lead life with the husband and in order to prove the impotency of husband, medical test is the only remedy available. If the application is not allowed, she would be put to hardship.
5. Objections are filed by the respondent/husband stating that the petition filed is unscientific and it is not maintainable. She has not stated anything about the same in the plaint and now at this stage, she has come up with this application and it is liable to be dismissed. It is the case of the husband that the parents of petitioner-wife have not arranged any nuptial ceremony and based on one or the other reasons, they go on postponing the nuptial ceremony. If the nuptial was arranged and if he had failed to perform, then only the wife can seek for scientific examination. It is stated that the wife is suffering from mental ill-health. It is also the case of the husband that the Government District Surgeon has also issued Medical Certificate that he is potent and the other side did not object for marking of the said certificate. Accordingly, he has prayed the Court to dismiss the petition.
6. The Court below, by order impugned, has dismissed the application observing that even as per the case of the wife, -4- NC: 2024:KHC:12457 WP No. 18013 of 2023 no nuptial ceremony has been arranged and the marriage itself is not consummated. When such is the case, the wife raising objection regarding the potentiality of the husband do not arise. As the husband had postponed the nuptial, she apprehends that he is impotent. The Court has come to the conclusion that the said allegation is without any proof and it cannot be said that the husband is impotent. The Court has further observed that even during the course of cross- examination, they have tried to elicit from the mouth of the respondent that marriage of husband's elder uncle's son and his father's sister has been dissolved due to impotency. The Court observed that the same cannot be applied to the husband merely because marriage of some of the relative of the husband was dissolved because of impotency. The Court has considered the medical certificate-Ex.R12 issued by the C.G.Hospital at Davangere, which discloses that there is no evidence of husband being unable to perform sexual intercourse. Therefore, the husband cannot be directed to undergo medical examination to prove his potency. The Court also observed that respondent-husband has filed M.C.No.4/12019 before the Senior Civil Judge Court, Channagiri, seeking restitution of conjugal rights and the same -5- NC: 2024:KHC:12457 WP No. 18013 of 2023 came to be allowed and the wife was directed to join the company of the husband within one month. But there is nothing on record to show that the wife has complied with the said order. The Court further observed that at the time of conclusion of the trial, she has come up with this application. If at all there is any truth in her contention, she is at liberty to prove the same by producing necessary evidence and accordingly had dismissed the application filed by the wife.
7. Learned counsel appearing for the wife submits that when the M.C is filed seeking to declare the marriage as nullity on the ground that the husband is impotent, until and unless scientific examination is conducted, that cannot be proved by the wife. It is submitted that some document has been filed on behalf of the husband. The doctor who has issued the certificate has not been examined and without examining the doctor who has issued the certificate, it is not open to the husband to say that as per the doctor's certificate, he is not impotent. The Court below had dismissed the application without any basis and it would cause lot of prejudice to the wife.
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8. Learned counsel appearing for the respondent-husband submits that the Court below has rightly dismissed the application and while dismissing the application, the Court below ought to have considered the fact that husband has filed M.C for restitution of conjugal rights and that was allowed and wife failed to join the husband. He submits that in support of his case, has marked Ex.R2 issued by C.G.Hospital, Davanagere, which shows that the petitioner is potent. It is submitted that earlier, he has filed a writ petition before this Court seeking early disposal of the case, i.e., Writ Petition No.22841/2022 (GM-FC) and this Court, by Order dated 12.01.2023 has disposed off the same directing the Court below to dispose off the case as expeditiously as possible. He submits that only with an intention to protract the litigation, Petition is filed and obtained stay of all further proceedings from this Court. It is submitted that the Court below had rightly dismissed the application and no grounds are made out seeking interference with the well considered order passed by the Court below.
9. Heard the counsel on either side and perused the entire material on record.
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10. It is the case of the petitioner-wife that though the marriage could not be consummated and husband has not turned up for the nuptial ceremony and according to her, he is impotent and to prove the same, she has filed this application. Even before this application is filed, husband has filed Ex.R12- medical certificate issued by the C.G.Hospital, Davanagere, showing that there is no evidence of patient not being able to perform sexual intercourse. Even it is the consistent case of the wife that the nuptial ceremony was not organized. There is also evidence on record, i.e., medical certificate-Ex.R12. If at all they are disputing the said certificate issued by the concerned doctor, the petitioner-wife ought to have examined the said doctor. But no such exercise was done and that too when the M.C is filed in 2019, what made the petitioner not to file this application till 2023 is not known.
11. However, considering the case of both the parties and in the interest of justice, this Court deems it appropriate to dispose off this writ petition by permitting the respondent- husband to examine the doctor and the petitioner-wife is at liberty to cross-examine the doctor. This Court has already -8- NC: 2024:KHC:12457 WP No. 18013 of 2023 directed the Court below in the other writ petition to expeditiously dispose off the matter.
12. At this juncture, learned counsel appearing for the wife submits that after examining the doctor, if nothing could be elicited, they may be permitted to renew their request for the scientific analysis.
13. Learned counsel appearing for the husband submits that only with an intention to protract the litigation, they are seeking liberty to file applications one after the other. He submits that to put queitous to all the disputes, the husband is ready to undergo medical test.
14. Considering the submission of the learned counsel for the husband, the writ petition is allowed and the following:
ORDER
(a) The Trial Court shall fix the date for medical examination.
(b) Immediately within one week from the date of examination, there shall be a direction to the concerned to place the report and, -9- NC: 2024:KHC:12457 WP No. 18013 of 2023
(c) Within two months from the date of the report, the Court below shall expeditiously dispose off the matter.
(d) Accordingly, the Writ Petition is allowed.
SD/-
JUDGE BNV List No.: 1 Sl No.: 15 CT:SNN