Posted On by &filed under High Court, Karnataka High Court.


Karnataka High Court
Zahida Begum vs Mushtaque Ahamed on 23 June, 2005
Equivalent citations: AIR 2006 Kant 10, I (2006) DMC 110, ILR 2005 KAR 4185, 2007 (1) KarLJ 299
Author: A J Gunjal
Bench: A J Gunjal


ORDER 26 RULE 10-A – Matrimonial case-Wife filing application to subject husband to medical examination for potency-Husband filinf application seeking for wife’s virginigy test-Both applications allowed by Trial Court-Wife questioning the order of Trial Court to undergo virginity test – HELD – Since a specific case is made out by the wife that the marriage could not be consummated as the husband was impotent and he was unable to perform the matrimorial obligations. In the circumstances, the question whether the wife is a virgin or not is wholly unnecessary. Therefore the Learned Trial Judge could not have directed the wife to undergo virginity test at the hands of a Gynaecologist. Also, the privacy of the person is not an absolute rule-power under Article 21 will have to be exercised only if the applicant has a strong prima facie case.

Petition allowed in part.

ORDER

Ajit J. Gunjal, J.

1. The plaintiff is the petitioner. The suit is filed by her for dissolution of marriage with the defendant-respondent which was performed on 22.12.2002 and for consequential relief seeking a direction to the defendant-respondent to return the dehaj articles which were given to the defendant as per the list at the time of marriage. The reason for seeking dissolution of the marriage is that the defendant is impotent and is unable to perform matrimonial obligations. After service of summons, the respondent-defendant entered appearance and has contested the proceedings inter alia denying that he is impotent or he is unable to perform the matrimonial obligations. He would further submit that the marriage was consummated on the date of the marriage itself. In the circumstances, he would seek for dismissal of the suit. A specific averment is made by the defendant-respondent in the written statement that he is willing to undergo medical checkup if directed by the Court. He has also taken up a defence that the plaintiff also be directed to undergo medical checkup so as to ascertain her virginity. On these pleadings as many as five issues were framed as under:

(1) Whether the plaintiff proves that her marriage with the defendant is not consummated because of impotency of the defendant?

(2) Whether the plaintiff proves that at the time of marriage Dehaj articles were given to the defendant?

(3) Whether the plaintiff is entitled for dissolution of her marriage with defendant?

(4) Whether the plaintiff is entitled for recovery of dehaj articles?

(5) What order ?

2. In view of the first issue which is framed, an application I.A. No. I is filed by the petitioner-plaintiff under Order 26 Rule 10-A read with Section 151 of the Code of Civil Procedure requesting the Court to direct the respondent-defendant to subject himself for medical examination as suggested by him in para 14 of his written statement. Identically another application was filed by the respondent-defendant, which is numbered as I.A. No. 2 seeking a direction to the plaintiff-petitioner to undergo medical check-up so as to ascertain her virginity. The Learned Trial Judge after hearing both applications has directed the petitioner-plaintiff to be examined by a Gynaecologist of KIMS Hospital who was appointed as a Commissioner so as to ascertain the virginity. In so far as the application of the plaintiff-petitioner is concerned, seeking a direction to the defendant-respondent to undergo test is concerned, the Trial Court has directed the defendant to undergo potency test at the hands of Head of Urologist Department, KIMS Hospital. The impugned order is produced at Annexure ‘G’.

3. I have been taken through the impugned order with the assistance of the Learned Counsel appearing for the petitioner. It is no doubt true that directing either of the parties to undergo medical test in the circumstances is certainly warranted. The question is whether the defendant should be subjected to medical test or the plaintiff also should be subjected to identical test. It is to be noticed that the specific case made out by the plaintiff-petitioner is that the marriage could not be consummated, as the defendant-respondent was impotent and he was unable to perform the matrimonial obligations. In the circumstances, the question whether the plaintiff-petitioner is a virgin or not is wholly unnecessary. In the circumstances, the Learned Trial Judge could not have directed the plaintiff-petitioner to undergo virginity test at the hands of a gynaecologist at Hubli. The question whether the right of privacy is invaded in a matrimonial case where the parties are subjected to a medical test has been set at rest by the Apex Court in case of Sharda v. Dharampal reported in. The Apex Court interpreting Article 21 of the Constitution of India has ruled that the privacy of a person is not an absolute rule. In a matrimonial case directing the parties to under go medical test, does not offend Article 21 of the Constitution of India. The Apex Court has also cautioned that such power will have to be exercised only if the applicant has a strong prima facie case. The Apex Court in the case referred has held :

54. The right to privacy has been developed by the Supreme Court over a period of time. A bench of eight judges in M.P. Sharma v. Satish Chandra, , in the context of search and seizure observed that:

“When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

55. Similarly in Kharak Singh v. State Of U.P., , the majority judgment observed thus:

“The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of fundamental right guaranteed by Part III.”

57. But the right to privacy in terms of Article 21 of the Constitution is not absolute right.

58. In Govind v. State Of Madhya Pradesh and Anr. , it was held:

“Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.”

85. 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.

If these principles are kept in mind, the first issue, which is framed on the basis of pleadings, the question would be only regarding the impotency of the defendant-respondent. Consequently, in the circumstances, the question of referring the plaintiff-petitioner-wife for medical test is wholly unnecessary. Taking into consideration the over all situation and the pleadings as well as the issues framed, I am of the considered view that the order passed by the Learned Trial Judge requires modification. Consequently, the petition is allowed in part.

The order directing the defendant-respondent to undergo medical test at the hands of the Head of the Department of Urology, KIMS Hubli, regarding potency is maintained. The order directing plaintiff-petitioner to undergo virginity test at the hands of Head of Department of Gynaecology at KIMS is set aside.

With this modification, the petition stands disposed of.


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