Madras High Court
M.B.Sruthi vs Unknown on 25 July, 2018
Author: P. Velmurugan
Bench: P. Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 25.07.2018 CORAM : THE HONOURABLE MR. JUSTICE P. VELMURUGAN CRP.(PD).No.1271 of 2018 and CMP.No.6535 of 2018 M.B.Sruthi .. petitioner v. K.T.Karthik .. respondent PRAYER : Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the decreetal order dated 21.09.2017 made in IA.No.1814 of 2017 in OP.No.3177 of 2016 passed by the learned IV Additional Principal Judge, Chennai. For Petitioner : M/s.Sudha Ramalingam. For Respondent : M/s.K.Shanthakumari. O R D E R
The relief sought for in the revision petition is to set aside the fair and decreetal order dated 21.09.2017 made in IA.No.1814 of 2017 in OP.No.3177 of 2016 passed by the learned IV Additional Principal Judge, Family Court, Chennai.
2. The revision petitioner is the wife and the respondent is the husband.
3. The revision petitioner filed OP.No.317 of 2016 before the Family Court, Chennai for restitution of conjugal rights. During the pendency of the petition, the respondent/husband filed IA.No.1814 of 2017 for sending the bedspread used by the parties at their first night during coitus, containing vaginal and seminal discharges of the parties and the blood stain from the blood of the respondent/petitioner to analysis and DNA sampling and testing with a direction to the said expert to render a report thereon and IA.No.1815 of 2017 is filed to direct the respondent/wife therein to undergo clinical and medical examinations by a competent Gynecologist of repute in any of the recognized medical institutions to ascertain whether the hymen of the respondent is intact and to render a report thereof. After hearing both the applications, the Family Court passed common order on 21.09.2017 by allowing the application in IA.No.1814 of 2017 and by dismissing the application in IA.No.1815 of 2017. Aggrieved against the order made in IA.No.1814 of 2017, the petitioner/wife has filed the present revision before this Court.
4. The learned counsel for the petitioner would submit that the marriage between the petitioner and respondent was not consummated on account of fact that the respondent suffered from erectile dysfunction, therefore, he could not consummate the marriage. The statement of the respondent that the marriage was consummated on the first night itself, is false. In the clinical test undergone by the petitioner, she is found to be a virgin with a hymen intact, even though she was married because the marriage was not consummated due to the alleged inadequacies of the respondent. The testing of hymen will not prove the virginity or otherwise of the women. The virginity testing or hymen testing or two finger testing are undeniable and unscientific. The Hon'ble Supreme Court has also held that two finger testing is invalid. Justice Verma committee also observed that intact hymen will not rule out the sexual assault and a torn hymen does not prove previous sexual intercourse. The Ministry of Health and Family welfare also issued guidelines to the medico legal care for survivors/victims of sexual violence. The hymen can be torn due to several reasons such as cycling, riding or masturbation among other things, though it is unscientific the petitioner is ready and willing to undergo the said test.
5. With regard to the application to send the bedspread used by the parties at their first night for forensic analysis and DNA sampling is preposterous and unscientific. The parties were married on 16.09.2015 and during their first night, it was unpleasant and could not be consummated because of the medical condition of the respondent. Therefore, the bedspread was used on that night was soiled and therefore, it does not contain any physical evidence. The respondent claimed to have been in possession of some soiled bedspread with the respondent's ejaculate and the petitioner's blood. But the respondent suffers from erectile dysfunction and could not have sexual intercourse with the petitioner. The claim of the respondent that he has preserved the bedspread a souvenir is false and no such Souvenir is possible since marriage was not consummated. The petitioner strongly suspects that the respondent has contaminated some piece of fabric with his bodily fluids and is using the said fabric to claim that the marriage was consummated and trying some bedspread which may not contain the blood of the petitioner and even without admitting if the bedspread is with the respondent could not be received as evidence. Further, the learned counsel would submit that it is not believable that a prudent man would preserve the bedspread without washing even after a period of two years from the date of marriage. Therefore, the respondent may concoct the fluids in the bedspread with other manner in order to create the evidence, which is not admissible and prays for interference with the order passed by the Family Court.
6. The learned counsel for the respondent would submit that the revision petitioner filed petition for restitution of conjugal rights, she has stated that the marriage between the petitioner and the respondent was not consummated, she has already undergone the test of hymen and her hymen was intact. It is not possible that her hymen was intact and the marriage was not consummated. The learned counsel for the respondent would submit that on the date of marriage i.e., in the first night itself, the marriage of the petitioner and the respondent was consummated and for memory he preserved the bedspread which was used during the first night. When the petitioner denied the consummation of marriage and also denied for hymen test, it is for the respondent no other option except to prove that on the date of marriage at first night itself the marriage was consummated. If the bedspread contained the semen of the respondent and vaginal fluid of the revision petitioner and the bedspread is sent for Forensic Science test/DNA sampling analysis, it will prove that the marriage of the petitioner and the respondent was consummated or not.
7. Heard the rival submissions made on both sides and perused the material records.
8. It is not in dispute that the marriage between the petitioner and the respondent and the first night held on 16.09.2015 and both the parties were lived together. The petitioner filed original petition before the Family Court for restitution of conjugal rights, the petitioner mainly alleged that the marriage between the petitioner and respondent was not consummated on account of fact that the respondent suffer from erectile dysfunction, therefore, the respondent could not consummate the marriage. The respondent denied all the allegations and also he has stated that on the first night of the marriage itself, the marriage was consummated and he has also preserved the bedspread used during the first night as a memento, which contains the vaginal fluid of the revision petitioner and semen of the respondent. Therefore, the respondent filed an application before the Family Court requesting to send the bedspread for DNA analysis and another application to ascertain whether the hymen of the respondent is intact, wherein the petitioner has stated two things (i)the marriage was not consummated and (ii)she was virgin and her hymen was intact. The trial Court dismissed the application with regard to hymen test, as against the said order, no appeal has been preferred by the respondent/husband. The revision petitioner/wife filed the present revision challenging the order allowing the application for sending the bedspread for DNA analysis. Since, the petitioner has specifically stated two things non consummation of marriage and as against the wish and will of the revision petitioner test for hymen cannot be ordered. But at the same time, she has specifically denied that the marriage was not consummated scheduled on the first night, due to the erectile dysfunction of the respondent. Whereas, the respondent/husband has specifically stated that the marriage was consummated even on the first night itself and he preserved the bedspread as memento, which contain the vaginal fluid and semen. The Family Court allowed the application in IA.No.1417 of 2017 and once the marriage is not disputed and consummation of marriage is disputed due to the erectile dysfunction of the respondent as alleged by the revision petitioner, which was vehemently denied by the respondent. In order to prove the case of the respondent/husband, it is necessary to send the bedspread used in the first night for DNA sampling and testing.
9. Though, the learned counsel for the petitioner would submit that it is not believable that a person can preserve the bedspread used in the first night for two years, there is no universal formula, bedspread used by the newly married couple could not be preserved, it depends upon the individual person. Hence, the submission made by the learned counsel for the petitioner is not acceptable one. When the respondent specifically stated that the bedspread contain vaginal fluid of the revision petitioner and semen of the respondent. Under these circumstances, mere sending the bedspread for the DNA analysis testing will no way cause any serious prejudice to the revision petitioner/wife. This Court finds there is no illegality or infirmity in the order dated 21.09.2017 passed by the learned IV Additional Principal Judge, Family Court, Chennai in IA.No.1814 of 2017 in OP.No.3177 of 2016 and finds no merits in the revision filed by the petitioner.
10. In the result, the civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
25.07.2018 Index : Yes/No speaking order/non speaking order.
tsh To The IV Additional Principal Judge, Family Court, Chennai.
P. VELMURUGAN, J.
tsh CRP.PD.No.1271 of 2018 25.07.2018.