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1980 DIGILAW 461 (MAD)

N. Venkatachalapathy v. Saroja

1980-11-27

RATNAM

body1980
Judgement ORDER .- The husband, who initiated proceedings against his wife under Section 13 (1) (b) of the Hindu Marriage Act 25 of 1955 as amended by Act 68 of 1976, is the petitioner in this civil revision petition, which is directed against the order dismissing an application filed by him to direct his wife, the respondent herein, to appear in Court and submit herself to a medical examination. The petitioner, in the course of his application, stated that the respondent is suffering from a deformity described as infantile uterus and it was only on account of this condition, she was not able to live a normal life with the petitioner and had left the petitioner since April 1973 and living separately and therefore, the petitioner is entitled to a decree of divorce on the ground of desertion. That application was resisted by the respondent on several grounds, which need not be noticed in detail for purposes of the present civil revision petition. Suffice it to say that the Sub-Court Tiruchirapalli, inquired into this application of the petitioner and found that the ground of desertion put forth by the petitioner has not been established. Consequent to this finding, the application filed by the petitioner was dismissed. Aggrieved by that, the petitioner preferred C.M.A.; 70 of 1979 before the District Court, Triuchirapalli, and that appeal is now pending. In I. A. No. 49 of 1980, the petitioner sought a direction to the effect that his wife, the respondent herein, should appear in court and submit herself to a medical examination by a competent medical expert. In paragraphs 3 and 7 of the affidavit in support of that application, the petitioner had stated that the respondent had a physical deformity which rendered her unfit for normal marital life and child bearing and that in order to establish that, it is necessary that the respondent should be examined by competent doctors. That application was resisted by the respondent herein on the ground that there is no physical deformity at all in her as claimed by the appellant and that though the petition for divorce was pending for more than three years, no application for medical examination of the respondent had been earlier filed by the petitioner. That application was resisted by the respondent herein on the ground that there is no physical deformity at all in her as claimed by the appellant and that though the petition for divorce was pending for more than three years, no application for medical examination of the respondent had been earlier filed by the petitioner. It was also further pointed out on behalf of the respondent that none of the doctors had been summoned to give evidence on their medical examination and would establish the mala fide conduct of the petitioner. The respondent further stated that the petitioner is romantically inclined and had also married another girl and had turned her out as well and that the application was only flied with a view to prolong the proceedings. The learned Additional District Judge, Tiruchirapalli, who inquired into this application, held that the petition filed by the petitioner was a frivolous and unsustainable petition as, even according to the petitioner in the course of his evidence, he had stated that he was not going to examine any of the doctors to establish the physical deformity of the respondent. On this conclusion, the application filed by the petitioner was dismissed. It is the correctness of this order that is challenged in this revision. 2. No doubt, the petitioner has come forward with a case that the respondent suffers from a deformity known as infantile uterus which renders her incapable of leading a normal marital life. The petitioner has to establish that this condition of the respondent was responsible for her having left the petitioner since April 1973. In the course of the proceedings before the trial Court, the petitioner did not take any steps whatever either for examining the doctors or even by asking for a medical examination of the respondent. Indeed, as has been pointed out by the learned District Judge, the definite stand that was taken by the petitioner was that he was not going to examined any of the doctors. Though the learned counsel for the petitioner would attempt to explain that this statement was made by the petitioner in a different context, a perusal of the evidence of the petitioner indicates that he was not anxious to let in any medical evidence with reference to the alleged deformity of his wife, the respondent herein. Though the learned counsel for the petitioner would attempt to explain that this statement was made by the petitioner in a different context, a perusal of the evidence of the petitioner indicates that he was not anxious to let in any medical evidence with reference to the alleged deformity of his wife, the respondent herein. In that state of affairs, the petitioner should be taken to have not established that his wife the respondent herein, is having infantile uterus and therefore, he would not be entitled to the relied prayed for by him, it is only to cover up this lacuna that the petitioner has come forward with the present application. The Court below was justified in treating this application as a frivolous application especially when the petitioner had an opportunity to let in medical evidence to establish the condition of the respondent as claimed by him but did not do so. 3. In addition, there is another insurmountable difficulty in the way of the petitioner. Section 151 C.P Code cannot be resorted to for the purposes of compelling a person to undergo medical examination. Indeed the Courts have consistently declined to permit the medical examination of a party to the proceedings. In Polavarapu Venkateswarlu v. Polavarapu Subbayya ILR (1952) Mad 150: ( AIR 1951 Mad 910 (1), Raghava Rao, J., had occasion to consider whether it is open to the Court to direct a party to appear before Court in order to enable a medical expert to take blood sample for testing the same with a view to decide the question of legitimacy. It was pointed out that there is no provision either in the Civil Procedure Code or in the Indian Evidence Act, which provides for a test of that type and that if a party is unwilling to offer his blood for a test of this kind, he cannot be forced to do so. In this view, the order of the Court below directing the medical examination of the blood sample was set aside. In Ranganathan Chettiar v. Chinna Lakshmi Achi, ILR (1956) Mad 66: ( AIR 1955 Mad 546 )., Rajagopala Ayyangar, J., had occasion to consider whether the Court has power to compel a party to be examined by a doctor against her consent. In Ranganathan Chettiar v. Chinna Lakshmi Achi, ILR (1956) Mad 66: ( AIR 1955 Mad 546 )., Rajagopala Ayyangar, J., had occasion to consider whether the Court has power to compel a party to be examined by a doctor against her consent. The learned Judge held that the Court has no power to compel a medical test on a human being without his or her consent apart from a statute winch clothes the Court with such power and Section 151 C.P.C. has no application to such a case. The learned Judge, however, added that it is open to the Court to draw any adverse inference against a party who refused to examine himself or herself. In Pulavarthini Sreermamurthi v. Pulavarthi Lakshmikantam, 1955 Andh WR 13 : (AIR 1955 Andh 207) Umamaheswaram, J. considered the question whether by an order of Court a party can be compelled to undergo medical examination. After considering the relevant cases, the learned Judge concluded that in the absence of any, statutory provision compelling the medical examination of a party and restricting the enjoyment of personal liberty of that person, it is not right to rely upon the general or inherent powers of the Court under Section 151 C.P.C. to achieve that purpose. In Krishnamurthi Aiyar v. Govindasami Pillai, 1966-2 Mad LJ 383: ( AIR 1966 Mad 443 ) Natesan, J., had to consider the question whether an election Court dealing with an election dispute under the Panchayats Act can order compulsory examination of a person who figures as a party to those proceedings. The learned Judge observed that it is the birth right of a man to claim that there shall be no trespass to his person unless provided by law and there is no warrant in the Civil Procedure Code for an order for compulsory medical examination of a party against his wish. These decisions, therefore, lay down that a person in the position of the respondent cannot be directed to be examined medically against her wish. Since the respondent has opposed the application of the petitioner and had also denied the defect in her, it is clear that any medical examination, if ordered, would only be against her wish, which as stated earlier, cannot be done. Since the respondent has opposed the application of the petitioner and had also denied the defect in her, it is clear that any medical examination, if ordered, would only be against her wish, which as stated earlier, cannot be done. Though the Court below has not proceeded on this ground, yet, the dismissal of the application by the learned District Judge could be sustained on this ground as well. There is absolutely nothing illegal or irregular in the order of the Court below dismissing the application filed by the petitioner. That order is perfectly correct and justified and deserves to be upheld. The civil revision petition fails and is dismissed with costs.