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2001 DIGILAW 1116 (MAD)

James Arockiasamy v. A. Jacqueline Fathima Mary

2001-09-21

V.KANAGARAJ

body2001
Judgment :- 1. This Civil Revision Petition is filed against the fair and decretal order dated 1.3.2001 made in I.A. No. 85 of 2000 in I.D.O.P. No. 1 of 1996 by the Court of Principal District Judge, Sivaganga. The interlocutory application has been filed by the husband, who is the petitioner in the main O.P., which is for divorce and he has prayed in the above application before the court below to order the examination of the respondent by appointing a team of three doctors having Master degree qualification in Gynaecology to make all scientific and biological tests on the respondents genital organs and their functions, etc. to find out the potentiality to give birth to the child and to submit a report with notes. 2. The lower Court, having found that there was no representation for the petitioner on hearing the learned counsel for the respondent therein and based on the available records, has passed orders since, in the opinion of the lower court, it was nothing but an attempt made on the part of the petitioner/husband to protract the proceedings and on such remarks, the lower Court would dismiss the application, testifying the validity of which the husband/petitioner has come forward to prefer the above Civil Revision Petition. 3. Even today, in spite of many calling, neither the petitioner appeared in person nor any effective representation made on the part of his counsel. But only an adjournment has been sought for thereby proving what has been opined by the lower Court to be true and hence, this court has to decide the above matter based on the materials made available on record and on hearing the learned counsel for the respondent. 4. This is an application for directing the respondent to subject before the team of doctors for being examined physically in order to ascertain her potentiality to bear the child. In a case of such nature, if a wife is not having the capacity to bear the child, it is not at all a ground for divorce as it has been misconstrued on the part of the petitioner and he could only take the plea of impotency, which has nothing to do with bearing the child. In a case of such nature, if a wife is not having the capacity to bear the child, it is not at all a ground for divorce as it has been misconstrued on the part of the petitioner and he could only take the plea of impotency, which has nothing to do with bearing the child. Even if a lady is not able to bear a child, it does not mean that she could also be impotent so as to pave the ground for the husband to seek divorce. Therefore, it is only that potentiality that could be subjected for test, even if the petitioner is genuinely interested in having a medical examination of the respondent conducted, as intended by the petitioner. Hence the very petition has no bearing on the subject or the relief sought for in the main petition and is not maintainable and hence, the petition at this score becomes liable to the dismissed and the same is dismissed accordingly. 5. In result. (i) The above Civil Revision Petition fails and the same is dismissed as without merit. (ii) The fair and decreetal order dated 1.3.2001 passed in I.A. No. 85 of 2000 in I.D.O.P. No. 1 of 1996 by the Court of Principal District Judge, Sivagangai is hereby confirmed. (iii) However, in the circumstances of the case, there shall be no order as to costs. (iv) Consequently C.M.P. No. 6022 of 2001 is also dismissed.