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Madhya Pradesh High Court

Smt. Vimla Devi vs Bhuvaneshwar Prasad Mishra on 15 February, 2023

Author: Maninder S. Bhatti

Bench: Maninder S. Bhatti

                                                             1
                           IN       THE     HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                       BEFORE
                                       HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                             ON THE 15 th OF FEBRUARY, 2023
                                              WRIT PETITION No. 8247 of 2016

                          BETWEEN:-
                          SMT. VIMLA DEVI W/O BHUVANESHWAR PRASAD
                          MISHRA, AGED ABOUT 28 YEARS, OCCUPATION:
                          HOUSEWIFE MUDARIYA TEH AND P.S. MAUGANJ
                          (MADHYA PRADESH)

                                                                                         .....PETITIONER
                          (BY SHRI SHUBH KARAN SINGH - ADVOCATE )

                          AND
                          BHUVANESHWAR PRASAD MISHRA S/O MAKSUDAN
                          PRASAD    MISHRA, AGED    ABOUT    30 YEARS,
                          OCCUPATION: LABOUR VILLAGE MISIRGAWAN PS..
                          AND TEH- NAIGARHI (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI SUKH NANDAN PANDEY - ADVOCATE )

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

This is a petition assailing the order dated 09.02.206 (Annexure- P/6) passed by the trial Court in Case No.H.M.A.38-A/14.

2 . Learned counsel for the petitioner contends that respondent/husband have moved a petition under Section 12 of the Hindu Marriage Act on the allegations against the petitioner/wife as regards the impotency. An application under Section 151 of CPC was also moved by the respondent/husband seeking medical examination of the petitioner/wife. The said application has been allowed by the Court below.

3. Learned counsel contends that the order passed by the Court below on 09.02.2016, suffers from perversity inasmuch as, there could not have been an order of medical examination inasmuch as, the petitioner has not averred in the entire petition as to what efforts were made by the petitioner after marriage to get petitioner/wife medically examined and directly, the petition was filed on the ground that the wife is impotent. Thus, this important aspect of the matter was required to be taken into consideration by the trial Court. Unfortunately, the trial Court proceeded to decide the application in a purely mechanical manner and also allowed the same. It is also contended by the counsel that the order impugned has direct nexus with infringement of right of the wife as regards the privacy and thus, the order impugned could not have been passed.

4. Per contra, counsel for the respondent submits that the very foundation on the basis of which application under Section 12 of the Hindu Marriage Act, is impotency of the wife and accordingly, in order to substantiate the said ground, the medical examination of the wife is necessary. Accordingly, the application under Section 151 of CPC was moved before the Court below, which has been allowed vide impugned order dated 09.02.2016.

5. Learned counsel contends the trial Court has rightly allowed the said application inasmuch as, in order to acertain as to whether the petitioner's wife is impotent or not, her medical examination is indispensable.

6. The counsel for the respondent has placed reliance on the decision of this Court in the case of Smt. Surbhi Trivedi vs. Gaurav Trivedi (M.P. No.4820/2018) and submitted that no interference is warranted.

7. Heard rivals submissions and perused the record.

8. A perusal of the petition filed under Section 12 of Hindu Marriage Act by the respondent/husband reflects that in paragraph 3 there are specific averments that the marriage solemnized between the petitioner and respondent has not been consummated as the wife is impotent.

9. In paragraph 4 of the petition, it is further elaborated that the wife refused to cohabit on one or the other pretext and therefore, there were no physical relations between the husband and wife.

10. In paragraph 5 of the petition, it is contended that the fact regarding impotency of the wife came into notice when, she was examined by one Dr. S.C. Saxena, Rewa on 14.02.2005 but, just in order to avoid humiliation' the said fact was not disclosed by the husband before anyone. Thereafter, in the prayer clause, it is submitted by the respondent/husband that if upon medical examination, the wife is found to be impotent, the marriage be declared annulled.

11. In order to substantiate the said application, the respondent/husband moved an application under Section 151 of CPC and prayed that the petitioner/wife be examined by the medical expert so as to find out as to whether she is impotent or not? The said application has been allowed by the Court below.

12. The Apex Court in the case of Sharda vs. Dharampal 2003 (4) SCC 493 has held in paragraphs 80 and 81 as under:-

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 be held 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.

13. Thereafter, the judgment of the Apex Court in the case of Sharda Dharampal (supra) was considered by this Court in the case of Amol Chavhan vs. Smt. Jyoti Chovhan 2012 (1) MPLJ 205 and this Court held in paragraphs 10 and 11 as under:-

10. The Apex Court in the aforesaid judgment has relied on Sharda vs. Dharmpal, reported in (2003) 4 SCC 493 to hold that medical examination by experts is permissible to ascertain the truth of the matter. In view of this, question No. 1 deserves to be answered against the petitioner. The Court below took a plausible stand and, therefore, cannot be interfered in this proceeding under Article 227 of the Constitution.

11. So far the issue regarding infringement of petitioner's personal or fundamental rights flowing Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/20/2023 12:51:10 PM 5 from Article 21 is concerned, in the opinion of this Court, there is no such infringement in a proceeding of this nature, where a question raised regarding impotency of petitioner by the wife, the Court has inherent power to direct the petitioner to undergo medical test.

14. Undisputedly, if the stand of the respondent/husband is found to be ill founded and incorrect, the Court below is competent to impose exemplary cost upon the respondent/husband but, to ascertain the truth of the matter, the medical examination of the petitioner/wife is imperative and in the considered view of this Court, the trial Court has not committed any error while passing the impugned order dated 09.02.2016 (Annexure-P/6)

15. Accordingly, the petition being devoid of merit, deserves to be and is hereby dismissed.

(MANINDER S. BHATTI) JUDGE mn Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/20/2023 12:51:10 PM