Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 326 (MAD)

K. P. Padmavathy v. N. Varadarajan

2009-01-27

S.PALANIVELU

body2009
Judgment :- The petitioner is wife of respondent. Their marriage was solemnised on 9. 2005 at Bannari Amman Temple. Both of them are registered medical practitioners even at the time of marriage. The petitioner was working at Sathyamangalam Primary Health Centre and also running a private clinic at P. Puliampatti and the respondent was at Chennai and running a clinic at Royapuram. They have no issues. 2. In the original petition, the petitioner has graphically narrated the events which took place on the first night itself and on subsequent occasions and as per her version she has been continuously facing much difficulties in having sexual relationship with the respondent and in fact those days during which she lived with him were painful and it constitutes the grounds of cruelty and impotency for seeking the relief of annulling the marriage between them or in the alternative dissolving the same by a decree of divorce. 3. In the counter filed in the Original Petition the respondent denied all the allegations and would say that he is potent enough to satisfy his wife and that the marriage was consummated. Pending the enquiry of the Original Petition, the respondent filed a petition in I.A.No.52 of 2008 under Order 24 Rule 10(A) of CPC for appointment of a District Medical Officer as a Commissioner to examine both of them to elucidate the fact that he is potent and that his wife is not virgin. 4. In the affidavit he has alleged that the medical examination of both the parties would unearth the truth in his versions and the falsity in the pleadings of his wife. He has furnished the address of the Commissioner who is medical officer of the District head quarters Government Hospital in Erode. .5. In the Counter, the petitioner also expressed her willingness to submit herself to any test relating to her virginity and that the respondent has to be examined by an Urologist and that too in a Post Graduate Institution along with a team of doctors which includes a psychiatrist, Gynaecologist and a general physician. But the District Medical Officer is not competent person to conduct the test and that there should be adequate facilities for pharmacological tests. But the District Medical Officer is not competent person to conduct the test and that there should be adequate facilities for pharmacological tests. Any report given by a doctor on mere physical examination and appearance cannot have any basis for determining potency of the respondent and the report should give the state of penis with its length and mid shaft girth while flaccid and erect and status of erection with its capacity for penetration. To decide the status of erection the intracavenous pressure at the height of erection has to be assessed by means of PIPE test. For proper investigation in the absence of PIPE test Rigi scan monitor, PICP test (for penile intra Corporeal pressure) and DDPU test (Duplex Doppler penile Ultrasound) have to be conducted to give a scientific opinion regarding potency. Such facilities are not available in the Erode Government Hospital. She has welcomed his decision to submit himself for medical test to find out his potency. She prays the Court that her husband be directed to be examined by a team doctors consisting Urologist, Psychiatrist, Gynaecologist and a general physician in an institution having scientific facilities for the tests and that a Gynaecologist in the same institute may be directed to examine the petitioner regarding her virginity. 6. After hearing both sides, the Principal Sub-Judge, Gobichettipalayam, allowed the application by appointing the District Medical Officer, Erode as Commissioner for examining the respondent as to his potency and the petitioner as regards her virginity. The said order is under challenge. 7. Mr.R. Vijayakumar, learned counsel for the petitioner would submit that the Court below has appointed the District Medical Officer as suggested by this respondent in his petition to examine him with necessary scientific equipments by medical experts, which are not available in the Erode District Head quarters Hospital and if both the parties were medically examined by a higher medical institution alone, the truth could be brought to the notice of the Court. 8. 8. Conversely, Mr.A.K. Kumarasamy, learned counsel appearing for the respondent would contend that the District Medical Officer / Commissioner appointed a team of doctors consisting Urologist, Psychiatrist, Gynaecologist and a general physician for medical examination of this respondent, who examined him and this petitioner did not appear before the District Medical Officer, Erode submitting herself for examination and that since the medical test of respondent was completed, the petitioner may be directed to appear before the District Medical Officer for examination. 9. Learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in 2003 (2) CTC 760 [Sharda v. Dharmpal] in which their Lordships have observed that in certain cases medical examination by the experts in the field may not only found to be leading the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms and that under Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10A the Civil Court has the requisite power to issue a direction to hold a scientific, technical or expert investigation. .10. In order to show niceties in the medical examination involving the procedures for ascertaining potency of a male, he garnered support from a Division Bench decision in AIR 1994 PUNJAB AND HARYANA 5 [Manjit Kaur v. Surinder Singh] in which the learned Judges have taken much pain in elaborating the processes or stages contained in the matter of medical examination of a male person as regards his potency. They passed orders directing the husband to be examined by an Urologist and after getting his report they have also examined the Urologist and clarified the facts by way of questions and answers. In para 10 of the Judgment it is observed that necessary facilities are available in the Post Graduate Institutions and not in any other institutions. Para 10 goes thus:- ."10. The opinion of Dr.S.K. Sharma is based upon "PIPE Test" conducted on the husband. He is categoric that as up to date it is a conclusive proof of potency or impotency of a male. Facility of this test is available at the P.G.I. and not in any other station. The evidence of Dr. Para 10 goes thus:- ."10. The opinion of Dr.S.K. Sharma is based upon "PIPE Test" conducted on the husband. He is categoric that as up to date it is a conclusive proof of potency or impotency of a male. Facility of this test is available at the P.G.I. and not in any other station. The evidence of Dr. Sharma conclusively proves that the husband was impotent at the time of marriage and there is no escape from the conclusion that the wife has succeeded in establishing that the marriage remained unconsummated owing to the impotence of the husband." 11. Having regard to the circumstances, I am of the considered opinion that both the spouses ought to be medically examined by an higher medical institution so as to remove the clouds in their minds and all others who are connected to the proceedings. The order challenged suffers from two aspects. One is, the Commissioner has been nominated as suggested by the petitioner and another, the District Head Quarters Hospital in Erode might not have been provided with adequate facilities and equipments to obtain desired result. .12. In such view of the matter, it is inevitable to refer both the parties to the higher medical institution in the State i.e., Madras Medical College Hospital at Chennai. The Dean of the Madras Medical College Hospital shall constitute a team of qualified doctors to test the potency of the respondent/husband and another team to medically examine the petitioner/wife as regards her virginity. The Dean after completion of such examinations shall get the report from the team and forward the same directly to the learned Principal Sub-Judge, Gobichettipalayam by name for further proceedings in H.M.O.P.No.43 of 2007. 13. With the above directions, the Civil Revision Petition is disposed of. Connected M.P. is closed.