Allahabad High Court
Upasana Kumari vs State Of Up on 24 January, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:10970-DB A.F.R. Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 27 of 2024 Petitioner :- Upasana Kumari Respondent :- State of U.P. Counsel for Petitioner :- Gambhir Singh,Amit Kumar Verma,Amit Kumar Verma Counsel for Respondent :- G.A.,G.A. Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Gajendra Kumar,J.
1. Heard Sri Gambhir Singh, learned counsel for the petitioner and Mrs. Manju Thakur, learned A.G.A.-I for the State respondents.
2. This writ petition is preferred under Article 226 of Constitution of India inter-alia with following reliefs:-
"(i). Issue a writ order or direction in the nature of certiorari to quash the impugned orders dated 07.10.2023 and 16.12.2023 passed by respondent no.4, whereby the petitioner/ victim has been ordered to undergone medical examination in respect of case crime no. 34 of 2023, Under Section 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act, Police Station- Mahila Thana, District Moradabad.
(ii) Issue a writ order or direction in the nature of mandamus commanding the respondent nos. 2 & 3 to take necessary action for conducting potency test/medical examination of respondent no.5 in K.G.M.U. Lucknow as advised by the board of the doctors of District Hospital Moradabad in place of L.L.R.M. Medical College, Meerut.
(iii) Issue a writ order or direction in the nature of mandamus commanding the respondent nos. 2 & 3 to conduct fair and impartial investigation of case crime no. 34 of 2023, Under Section 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act, Police Station- Mahila Thana, District Moradabad within stipulated period."
3. The brief facts as per prosecution case are that the marriage of the petitioner was solemnized with 5th respondent (husband) on 26.01.2023 with Hindu rites and rituals but the marriage could not be consummated on account of impotency of her husband. Consequently, a written report dated 01.07.2023 was submitted by the petitioner at Police Station Mahila Thana, District Moradabad, alleging that the respondent nos.5 to 8 had inflicted cruelty on her and concealed the fact of impotency of her husband by birth with the petitioner. The aforesaid case was registered as Case Crime No.34 of 2023 under Sections 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act, Police Station Mahila Thana, District Moradabad.
4. Learned counsel for the petitioner submits that the petitioner herself is a victim of offence under Sections 498A, 323, 354, 504, 420 IPC and 3/4 D.P. Act and therefore, there was no reason to advise the petitioner to undergo medical examination (Gynecology Examination). She herself had raised a question of impotency of her husband/accused and demanded his potency test. Further, it is contended that her husband was medically examined by the Doctor of T.M.U. Hospital, Moradabad on her request and according to the supplementary report of the doctor dated 01.08.2023, petitioner's husband was found suffering from phimosis disease, which is the main cause for impotency.
5. It is also contended that her husband was well aware that he was not in a position to perform sexual intercourse and in fact, he is an impotent person. Without divulging the said fact, the marriage has been solemnized. It is also alleged that during the investigation, in most arbitrary manner, the Investigating Officer had deleted Sections 354 and 420 I.P.C. as the case had been made out against the accused persons under Sections 354 and 420 IPC. Therefore, it is pressed that the impugned orders are illegal, arbitrary and against the provisions of law, wherein the respondents had no authority to compel the petitioner to undergo the medical examination. In case of marriage, physical relationship or mental relationship is a condition, which is persistent and regular to make the consummation of marriage essential. Non-consummation of marriage was the sore point of the wife (petitioner) due to which she lodged the FIR against the respondent nos.5 to 8. Moreover, once the petitioner alleged that her husband is impotent and cannot cohabit, then in such situation the petitioner cannot be asked to undergo medical examination. Hence, the impugned orders are illegal, arbitrary and the same are liable to be set aside.
6. Per contra, Mrs. Manju Thakur, learned A.G.A.-I has vehemently opposed the writ petition and submitted that the impugned orders (medical advises) were passed by the authority concerned after considering all the aspects of the matter. Moreover, once the petitioner's husband had raised an objection that the petitioner wife refused to cooperate with him in sexual intercourse, then in such situation one sided version cannot be accepted and the petitioner cannot refuse to get herself medically examined. Moreover, in the instant case, on the instance of the petitioner, once the husband had already undergone the medical examination then the refusal by the petitioner for medical examination is in fact interference in the ongoing investigation in the matter. In support of her submission, she has placed reliance on the judgment of High Court of Uttarakhand at Nainital in Ameet Bhuvan vs. Smt. Bhaskar1. She lastly submits that said disputed fact cannot be pressed under Article 226 of Constitution of India. The writ petition is devoid of merit and the same is liable to be dismissed.
7. Heard rival submissions and perused the record.
8. From perusal of the pleadings as well as Annexures available on record, it transpires that initially, the petitioner lodged an FIR against her husband as well as other in-laws (respondent nos.5 to 8) with the allegation of mental and physical cruelty regarding non-fulfillment of demand of dowry. The petitioner in addition to physical cruelty had also alleged that her husband was in fact impotent since birth and same had been concealed by the private respondents. On account of his impotency, the marriage could not have been consummated. In pursuance of the FIR the investigation was carried out. Even though, initially the charge sheet was forwarded to the Circle Officer concerned, to which the objection was raised by the petitioner that the respondents had not ensured to get the potency test of her husband and in collusion with the respondents, the investigating officer had forwarded the chargesheet.
9. It further reveals that on account of the protest of the petitioner, further investigation was carried out by the concerned police authority in pursuance of which the medical examination of the petitioner's husband was conducted by the Medical Board at District Hospital Moradabad. Thereafter, the Board advised for reference to L.L.R.M. Medical College, Meerut or K.G.M.U. Medical College, Lucknow vide it's report dated 20.09.2023 for further specialised tests/medical examination i.e. Neurologist, Urologist, Psychiatrist, Endocologist, which can only be carried out at the super-speciality hospital and the same is not available at District Moradabad. Meanwhile, the petitioner approached this Court by means of Criminal Misc. Writ Petition No.12827 of 2023 (Upasna Kumari Vs. State of U.P. and 6 others) with a prayer for fair, impartial and proper investigation in respect of the aforesaid Case Crime, wherein, a Division Bench of this Court vide order dated 20.09.2023 had proceeded to dispose of the writ petition in the light of judgment in Ajay Kumar Pandey vs. State of UP and others2, by granting liberty to the petitioner to invoke the power of the Magistrate concern under Section 156 (3) Cr.P.C.
10. Pursuant to the aforesaid order, the petitioner moved another application under Section 156 (3) Cr.P.C. before the concerned Magistrate. After hearing and perusal of the record, the Civil Judge (Junior Division), FTC, Moradabad (Crime Against Women) had asked a report from the investigating officer alognwith the case diary and passed an order dated 21.10.2023 with following effect:-
"सुना व अवलोकन किया।
प्रश्नगत मामले में- विवेचक के मौखिक व लिखित तथ्य व केस डायरी के अवलोकन से पाया जाता है कि याचिका द्वारा प्रार्थनापत्र में जिन तथ्यों को वर्णित करते हुए विवेचना कराये जाने का अनुरोध किया गया है उन सभी तथ्यों को ध्यान में रखते हुए विवेचक द्वारा विवेचना अग्रसारित की जा रही है। ऐसी स्थिति में विवेचक को विवेचना में अन्य कोई आदेश देना विवेचना में हस्तक्षेप किया जाना होगा। अतः अन्य कोई आदेश दिया जाने का कोई औचित्य नहीं है। प्रार्थनापत्र तद्नुसार निस्तारित। विवेचक को निर्देशित किया जाता है कि वह नियमानुसार सभी तथ्यों को ध्यान में रखते हुए विवेचना सुनिश्चित करे।"
11. The Chairman, Medical Committee, LLRM Medical College Meerut made a communication to the Principal LLRM Medical College, Meerut on 07.10.2023 that Mudit Kumar (petitioner's husband) may be directed to be present on 11.10.2023 at 01:00 p.m. before the surgery department as per advice given by Dr. Shivendu of Endocology Department and Dr. Tarun Pal of Psychiatric Department. In this backdrop, the members of the Medical Committee had unanimously resolved that as the complainant had made a complaint against her husband regarding his impotency and capacity to copulate, therefore, the petitioner may also be medically examined by the Gynecologist and CMO Moradabad and a report be submitted to the Committee in sealed cover. The petitioner is aggrieved with the said advise, specially for undergoing medical examination by the Gynecologist and the application was moved with the prayer that she does not want her medical/gynecology examination without the order by the Court.
12. In this backdrop, the Medical Committee again convened the meeting on 13.12.2023 and all the members of the said Committee were unanimous that for the sexual intercourse, the husband and wife both are actively involved. Therefore, the Committee opined that the petitioner/objector must go for gynecology examination by the Gynecologist so that it may be ensured that whether her genital organs are normal or there is any malfunctioning specially for the purpose of active sexual intercourse. The said observation was made by the Committee, once the petitioner's husband had made an objection/statement before the Committee that his wife does not cooperate in sexual intercourse. Therefore, the communication was made to the petitioner by the Committee on 16.12.2023, which is impugned in the present matter. Being aggrieved by both the communications dated 7.10.2023 and 16.12.2023, the instant writ petition had been filed. It is apparent that no order had been passed by the authority rather the petitioner had been directed/advised to be medically examined by the Gynecologist so that comprehensive report regarding the potency test of the husband of the petitioner could be prepared and forwarded to the concerned investigation officer.
13. The main plank of the argument of the petitioner's counsel is that the petitioner is the victim in this case and she had levelled serious allegation of impotency against her husband. Therefore, her medical examination by the gynecologist is unwarranted and cannot be part of the investigation, said argument was resisted by learned AGA-I on the ground that at the initial stage of investigation, at the promptness of the petitioner, even though the potency test of her husband had been carried but the proper investigation could not be ensured unless the petitioner is also medically examined by the gynecologist as for the sexual intercourse the bodies of both the parties are involved, therefore, she also needs to be medically examined.
14. Impotence is defined as lack of ability to perform sexual act and sterility is defined as lack of ability to procreate children. Questions of impotence and sterility arise when divorce is sought (a) because, marriage cannot be consummated (i.e., one of the parties is incapable of complete sexual intercourse), (b) if incapacity for consummation cannot be surgically remedied, or, the defective party is unwilling to submit to a surgical operation; or (c) if the incapacity existed before marriage. Impotence is attributed to injury to head, neck, or loins. Potence in case of males means power of erection of the male organ ''plus'' discharge of healthy semen containing living spermatozoa and in the case of females means (1) development of external and internal genitals and (2) ovulation and menstruation.
15. Causes of impotence: (*Apply to males only. --*Apply to females only; those unmarked, apply to both sexes):-
1. Organic: 1. ''Nervous Lesions*'': Diseases of, or injury to, brain or cord. 2. ''Malformation or absence of parts* male organ may be absent, non-developed, ill-developed, or two or more in number: adherent to scrotum or abdomen; fibrous or cartilaginous; hypospadias; congenital phimosis, anorchidisni, cry-ptorchidism; diseases of or accidents to or operations on the male organ, testicles or ducts (perinaeum).
*Atersia or narrowness of vulva, absence of uterus, tough hymen or vagina. (Though according to law, a boy under 14 is impotent, in fact, he is not always so). Also -- Obesity, 3. ''Inflammations or Cicatricial'' contractions*. ''Vaginismus''. Krauroses vulvae; internal piles, tight stricture. 4. Tumorous*:--Elephantiasis; ''hernia'', big hydrocele.
"Psychial* 1. Absence of voluptuous thoughts. 2. ''Repugnance'' towards individuals, ''fear'', ''timidity'', ''excessive passion''. (For this reason, a man may be potent towards one woman and impotent towards another.
Atonic.* (Therefore, often temporary impotence). 1. ''From general diseases'' and ''conditions'': -- Old age, too frequent coitus, wasting diseases (diabetes); anaemia; uraemia, cholaema, rhumatism, diptheria, Heart diseases, chronic nephrities, acute fevers, parotitis. 2, ''From Over-indulgence in drugs'': lead, potassium Iodide, opium, cannabis indica and other narcotics; alcohol, tobacco, thyroidin. 3. ''From chronic irritation of genital passages -- due to gonorrhoea, stricture, masturbation vaginismus.
16. This information can be gathered from standard text-books, English and Indian, on the subject like Glaister''s Medical Jurisprudence and Toxicology (1953), 9th Edn., Chapter XII, p. 358 ff; Taylor on Sexual Disorders (2nd Edn,), Chapter VIII, page 98ff, (atonic); Organic impotence, Chapter IX, p. 105 ff; Forel''s Sexual question and Psychic Impotence, pp. 85, 219; Mody''s Medical Jurisprudence and Toxicology (12th Edn.), Chapter XIII, p. 284ff; Ray''s Medical Jurisprudence and Treatment of poisoning (6th Edn.) page 23lff; Kanmth''s Medical Jurisprudence. (MLJ publication.)
17. So far as the legal position regarding the requirement of potency test, in cases where allegation has been made by the wife to the effect that marriage is not properly consummated and the husband is impotent and was incapable of consummating the marriage on account of his complete and total impotency is concerned, it may be pertinent to refer the judgment passed by this Court in the case of Jagdish Lal vs. Smt. Shyama Madan And Ors.3 in which it has been held as under :-
"7. Impotency means incapacity for accomplishing the act of sexual intercourse and by sexual intercourse, in this context, is meant not an incipient, partial or imperfect but a normal and complete coitus. Impotency is to be distinguished from sterility which may in some cases accompany impotency but is not necessarily associated with it, the two expressions denoting lack of two different powers. A person may be incapable of accomplishing the sexual act and yet be capable of procreating and conversely too, a person may be incapable or procreating and yet be capable of accomplishing the sexual act. The cause of impotency may be in the malformation or structural defect in the parts; in the functions, resulting in imperfect erection or premature ejaculation; in diseases, whether local or general or in the mind, manifesting itself a repugnance for the sexual act, fear, lack of confidence etc. It may also happen that a person is capable of having sexual intercourse but incapable of performing it with a particular individual, and in such a case the person must be regarded as impotent in relation to that particular individual regardless of his potency in general. These matters are too well settled to need reference to any medico-legal or legal authorities."
18. In the aforesaid case, the medical examinations of both the parties were conducted and considered.
19. In T. Rangaswami vs. T. Aravindammal4 it was observed:-
"21. In regard to proof of impotency, the rules of evidence are not different in the case of impotency than elsewhere. Impotency that is physical unfit-ness for consummation, must be proved or there must be facts from which this can be inferred. The proof must be, as used to be expressed in the Ecdeciastical courts in England not suspicio probablis but has to be Vehetnens proesumptio.
22. There is no minimum standard of proof necessary. Even" uncorroborated testimony of the petitioner is sufficient if it can be believed. In cases of this nature, corrboration can only be obtained from the evidence ''of the other party to the marriage. u/s 120 of the Evidence Act, the other party to the marriage is a competent witness.
23. The conduct of the parties subsequent to the marriage would be important. Did they peak lot the impotency to anybody? Was it mentioned to any friend or relation or to their parents? If, not, why not? Would it be natural not to do so? Or was there no opportunity? It would not be natural for everybody to speak these matters to another. A reserved or shy or a reticent person would not. On the other hand, other types almost certainly would. Whether the parties to the case fall within the one class or the other, it is for the trial, judge to discover: (AIR 1943 Nag 185) (L).
24. Impotency may be established by medical examination of the parties. The doctor who examined either party or both the parties, may be examined as witness.
Where the respondent relies on a doctor''s certificate that ho was able to have sexual intercourse and was potent that day, the certificate must be strictly proved by examining the doctor who issued it. Certificates like these, do not prove themselves. The doctor giving the certificate has to state what tests he carried out to arrive at his conclusions and must stand cross-examination and convince the Court that his conclusion about the potency is correct."
20. In the case of Ameet Bhuvan vs. Smt. Swati Bhaskar (supra) the question of impotency was also involved, wherein it has been observed and held as under : -
"14. The Hon'ble Apex Court in its judgment rendered in AIR 2002 SC 2582, "Praveen Mehta v. Inderjit Mehta" although deals with a situation where a wife refuses to cooperate with her husband in sexual intercourse and also refuses to get herself medically examined or undergo medical treatment and that she has abused and misbehaved with the husband and friends and other relatives, thereby depriving of the husband to normal cohabitation, this will amount to be mental cruelty.
15. In the instant case, it is the husband, who despite of the court's order avoid to undergo the medical test, this avoidance to undergo the medical test will amount to the refusal for medical test. Such a refusal will amount to be a mental cruelty. In the said judgment while dealing with the concept of mental cruelty it has been held that it is a state of mind and feeling, thus the cruelty for the purpose of Section 13 (1) (i-a) is to be taken as a behaviour towards the spouse and one another. In the same judgment, Hon'ble Apex Court has held that a wife of non cooperative attitude to have sex and refusing for a medical treatment, abusing and misbehaving with the husband even with his friends would be a mental cruelty. Para 19, 20 and 21 of the said judgment are reproduced herein below:-
"19. Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that if will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91 ).
20. In the case in hand the foundation of the case of 'cruelty' as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated.
When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behavior towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastana (supra), observed : "Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment".
21. Cruelty for the purpose of Section 13 (1) (ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.
21. In the cases of marriage, physical relationship or mental relationship is a condition which is persistent and regular to make the consummation of marriage essential. The practical incapability has to be seen by the court below although when such type of issue crops up in litigation, there is no yardstick provided, which could determine the standard of proof to determine the potency or impotency. Thus issue has to be settled on the basis of incorporated testimony or medical inputs and by the conduct of the parties which has to be pleaded in the absence of their being in denial of the said fact.
24. In a judgment rendered by Hon'ble Rajasthan High Court at Jaipur in the case of Renuka vs. Rajendra Hada in its para 12 and 13 has held as under :
"12. The questions for consideration in the instant appeal are:-
(i) Whether a matrimonial court had power to order appellant to undergo medical test?
(ii) If despite the order of the Court, the appellant refused to submit herself to medical examination whether the court could draw adverse inference against her?
(iii) Whether the respondent has succeeded in satisfactorily establishing that the appellant was impotent at the time of marriage and at the time of filing of the petition?
13. We find answer of these questions in two decisions rendered by the Hon'ble Supreme Court in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was indicated that 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 would be made out. Section 114 of the Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidence in the power and possession. The conclusion drawn by the Apex Court are as under :-
(i) A matrimonial Court has the power to order a person to undergo medical test.
(ii) Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Constitution.
(iii) 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 inference against him."
21. In Yuvraj Digvijay Sinhji vs. Yuvrani PratapKumari5 Hon'ble Supreme Court while deciding the issue of impotency has observed as under:-
"A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings."
22. In the present case, the marriage between the parties was solemnised on 26th January, 2023 and the parties had lived together for a period of approximately five months. Meanwhile, the petitioner wife had also gone to her parental home for a short duration. The stand of the petitioner-wife is that despite efforts made by her to come close to the respondent, there was no cohabitation between them and there was no consummation of marriage. Consequently, the impugned FIR was lodged by the petitioner wife on 01.07.2023 with allegation of mental and physical cruelty regarding non-fulfillment of demand of dowry and concealment of fact of impotency of her husband by birth. The investigation was carried out, wherein the medical examination of the petitioner's husband was also conducted by the Medical Board and the Committee advised that the petitioner must go for gynecology examination.
23. In view of the above, no comprehensive report regarding the potency test of the husband can be prepared and made without getting the petitioner medically examined along with the husband. In this case the Medical Inquiry Committee is of the opinion that the petitioner wife should also be medically examined as her husband has made a categorical statement before the Committee that his wife does not cooperate with him during sexual intercourse. There is no material available on record to substantiate the allegation made against the Inquiry Committee of LLRM Medical College necessitating the potency test/ medical examination of the respondent no.5 to be conducted by the Medical Board at KGMU Medical College, Lucknow.
24. As there is no need to issue any further direction regarding the prayer no.3 as the fair and impartial investigation is being carried out and the potency test of the husband had been conducted at the instance of the petitioner herself and this potency test was conducted at the stage of investigation as per Section 2(h) Cr.P.C. "investigation", which includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
25. Therefore, we do not find any illegality or impropriety in the impugned communications of the Medical Inquiry Committee dated 07.10.2023 and 16.12.2023 and no interference is required in the matter.
26. Accordingly, the writ petition stands dismissed.
Order Date :- 24.1.2024 NLY/Shiv/RKP