Bombay High Court
Vickey Satish Pande vs Abha Vickey Pande on 20 January, 2021
Equivalent citations: AIRONLINE 2021 BOM 130
Author: M.S.Karnik
Bench: M.S.Karnik
12. WPST 97591 OF 2020.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION ST. NO. 97591 OF 2020
VICKY PANDE ..PETITIONER
vs.
ABHA VICKY PANDE ..RESPONDENT
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Mr. Ashwin Shete a/w. Mr. Abhay Dhadiwal, Ms. Anushka Agarwal
and Ms. Divya Tyagi i/b. M/s. Jaykar & Partners for petitioner.
Mr. Sanjay Kulkarni i/b. Mr. V.B. Tiwari & Co. for respondent.
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CORAM : M.S.KARNIK, J.
DATE : JANUARY 20, 2021
P.C.:-
The petitioner - husband by this Petition fled under Article
227 of the Constitution of India challenges an order passed below
Exhibit 17 on the application made by the respondent - wife for
sending the petitioner - husband for impotency test in Sir J.J.
Hospital on the ground assigned therein. The learned Judge
allowed the application and referred the petitioner - husband for
medical examination and directed that impotency test be carried
out.
2. My attention is invited to the fndings of the learned Judge
at paragraph 6 of the impugned order. It is the contention of
learned counsel for the petitioner - husband relying on the
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decision of the Apex Court in the case of Sharda vs. Dharmpal1
that no doubt that the Court has a power to send the husband for
medical examination, but the said power has to be exercised only
if the applicant has established a strong prima facie case before
passing such an order and the same should be passed on
sufficient materials before the Court. Learned counsel submitted
that the consideration by the learned Judge does not pass the
test of strong prima facie case and that passed on the same
being the basis sufficient materials before the Court.
3. Learned counsel for the respondent while supporting the
impugned order submitted that the learned Judge has considered
all aspects of the matter and thereafter referred the husband for
medical examination. He invited my attention to the report
submitted by the husband. According to him, there was no
occasion to husband to have submitted himself for medical
examination. In any case, according to him, it was necessary to
test veracity of the report which was unilaterally submitted by
the husband and therefore, there is no reason to interfere with
the impugned order. According to learned counsel, the trial Court
has also taken into consideration the fact that the Woman State
Commission has directed the petitioner - husband to undergo the
1 (2003) 4 SCC 493
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12. WPST 97591 OF 2020.doc
medical test. He submitted that the entire Petition for nullity of
marriage is based on the allegation that the petitioner - husband
is impotent and therefore, if learned Judge has referred the
petitioner - husband for medical examination, it cannot be said
that there is any perversity in passing the order.
4. Heard learned counsel for the parties.
5. To deal with the contentions of learned counsel it would be
necessary to reproduce paragraph 6 of the impugned order and
the operative part thereof which reads under :
"6. Considering all above aspects, indeed fundamental object
and very purpose of Hindu Marriage Act, 1955 is recognition,
regulate the law related to marriage among Hindus under
section 11 and 12 words clearly defnes of void marriage and
voidable marriage given. The section of Hindu Marriage Act,
1955, 5(B) read with section 12(A) clearly would be applicable in
the present case. If the entire petition is based on the alleged
impotency of the respondent / husband then and to test veracity
of the medical reports which are on record unilateral test
conducted by the respondent / husband. Independent doctors,
expert opinion is necessary to adjudicate main issue as per
section 11 and 12. It would be just and proper to refer the
respondent / husband for medical examination strictly as per the
norms by the expert doctor and as per best decision or medical
opinion of Dean Government Medical College. Therefore, I
answer point No.1 in the affirmative, in the result following
order:
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12. WPST 97591 OF 2020.doc
: ORDER :
1. The respondent / husband shall made available himself for the medical examination i.e. psychological and physical test of impotency at the cost of petitioner to the Dean the Medical College, Mumbai, Medical Board or under their directions parties in presence of advocates may opt for any recognized, reputed hospital in Mumbai having such standard test facility.
2. The petitioner shall bear the expenses of all tests of the respondent / husband which shall be conducted between 27.11.2020 to 05.12.2020 as per schedule and appointment given by Dean Government Medical College or any recognized hospital."
6. Learned Judge has proceeded on the footing that the test carried out by the petitioner - husband is unilaterally conducted by him and therefore veracity of the same needs to be tested by opinion of independent doctors as expert opinion is necessary to adjudicate the main issue.
7. The application ought to be decided in the light of the observations of the Apex Court in the case of Sharda. Paragraphs 76 to 81 reads thus :-
"76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia...etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is 4/8
12. WPST 97591 OF 2020.doc correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifcally conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21 , it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in confict with the so- called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.
77. If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.
78. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and/or Article 5/8
12. WPST 97591 OF 2020.doc 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a fnding that the applicant has established a strong prima facie case before passing such an order.
79. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession.
80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to be violative of one's right of privacy.
81. To sum up, our conclusions are
1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him."
8. In my opinion, it was necessary for the trial Court to have arrived at the fnding that the applicant had established a strong prima facie case before passing the order and the same should 6/8
12. WPST 97591 OF 2020.doc have been passed on sufficient materials before the Court which is not refected in the order. It is therefore necessary to remit the matter back to the trial Court for reconsidering the application afresh in the light of the principles of law laid down by the Apex Court in the case of "Sharda".
9. The Writ Petition is allowed.
10. The impugned order is set aside. The trial Court is requested to decide the application Exhibit 17 as expeditiously as possible and in any event within a period of three weeks from today.
11. Needless to mention that all contentions on merits are kept open. I may not be understood to have expressed any opinion on the rival contentions and the Court is free to decide the application on its own merits and in accordance with law.
12. Learned counsel for the Respondent pointed out that the Petitioner has failed to pay the maintenance as granted by the trial Court. Learned counsel for the Petitioner in all fairness on instructions of the Petitioner stated that the arrears to the extent of 75% will be paid to the Respondent within a period of two 7/8
12. WPST 97591 OF 2020.doc weeks from today. So far as the remaining arrears are concerned the trial Court may deal with the same.
Digitally
signed by
Diksha
Diksha Rane
Rane Date:
2021.01.21
14:20:09
+0530
13. The Writ Petition is disposed of accordingly.
(M.S.KARNIK, J.) 8/8