Varsha D vs Nagesh R on 14 December, 2020

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Karnataka High Court

Varsha D vs Nagesh R on 14 December, 2020

Bench: Krishna S.Dixit

                          1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 14TH DAY OF DECEMBER, 2020

                        BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.6894 OF 2020 (GM-CPC)

BETWEEN:

VARSHA D,
W/O NA GESH R,
D/O DAYANADA P.R,
AGED ABOUT 25 YEARS,
R/AT 1294, CH-18, 3RD MAIN,
3RD CROSS, KRISHNAMURTHYPURAM,
MYSURU 570004.
                                         ... PETITIONER
(BY SRI.NAGARJUN J, ADVOCATE FOR
    SRI. JAGADEESH C M, ADVOCATE)

AND:

NAGESH R,
S/O RAMESH N,
AGED ABOUT 27 YEARS,
R/A 105, 7 A MAIN,
3RD BLOCK, JAYANAGAR,
BENGALURU 560011.
                                       ...RESPONDENT
(BY SRI. P CHIDANANADA, ADVOCATE FOR C/R
         (IN C.P.NO.2237/2019))

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
DISMISSAL ORDER, PASSED BY THE HON'BLE II ADDL. PRL.
FAMILY COURT AT MYSURU IN M.C.NO.468/2018, DATED
08.11.2019, OF INTERLOCUTORY APPLICATION NO.9/2019
FILED BY THE PETITIONER U/O 26 RULE 10(A) OF CPC AND
DIRECT THE LOWER COURT TO APPOINT URO ANROLOGIST
TO CONDUCE POTENCY TEST OF THE RESPONDENT AS
PRAYED BY THE PETITIONER IN THE SAID APPLICATION, BY
ALLOWING THIS W.P.

    THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY THROUGH VIDEO CONFERENCE, THE
COURT MADE THE FOLLOWING:-
                              2


                     ORDER

Respondent-wife in M.C.No.468/2018 filed by the husband seeking a decree for dissolution of the marriage on the ground of cruelty, is knocking at the doors of writ court for assailing the order dated 08.11.2019, a copy whereof is at Annexure-A whereby the learned II Addl. Principal Judge, Family Court, Mysuru has rejected her application in I.A.9 filed under Order XXVI Rule 10(A) of CPC, 1908 and thereby refused to subject the respondent- husband for a medical test for ascertaining his potency.

2. The respondent-husband having entered caveat through his counsel, resists the writ petition making submission in justification of the impugned order and the reasoning on which it is founded.

3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch as the case of the respondent-husband is structured on the ground of cruelty which may, if proved, merit grant of a decree accordingly; it is open to the petitioner-wife to take up all contentions for opposing the case of the respondent- 3 husband but not the ground of potency in the absence of a Counter Claim for a decree for the dissolution of marriage.

4. Whether the respondent-husband is having potency or not does not figure even within the penumbra of consideration at the hands of the Court below; merely because petitioner-wife is permitted to amend her Objection Statement for taking up such a contention, that would not entitle her to subject the respondent-husband to the test of the kind; after all the potency test has got larger implications and therefore the request for the same cannot be readily granted, for an askance.

In the above circumstances, writ petition being devoid of merits, is liable to be rejected and accordingly stands rejected, all contentions of the parties having been kept open.

The dismissal of the writ petition in any way will not affect any grounds which the petitioner-wife may urge in the Court below in support of his stand.

No costs.

Sd/-

JUDGE Snb/

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