Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 654 (MAD)

Gerard Pinto Mariadas v. Lourdes Selvapriya

2009-03-02

G.RAJASURIA

body2009
Judgment :- This civil revision petition is filed against the order dated 111. 2008 passed in I.A.317 of 2008 in MOP 37 of 2007 by the Additional District Court, Pondicherry. Inveighing the order dated 111. 2008 passed in I.A.317 of 2008 in MOP 37 of 2007 by the Additional District Court, Pondicherry, this civil revision petition is focused. 2. The long and the short and epitome of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:- The revision petitioner herein filed MOP No.37 of 2007 before the Additional District Court, Pondicherry, seeking divorce under Section 231 of the French Code Civil. While so, the respondent-wife entered appearance and filed counter. She also filed the I.A.No.317 of 2008 with the following prayer:- ‘to direct the respondent/petitioner to undergo a medical check up before the Medical Board in Pondicherry Govt. General Hospital and file the report before this Court." The main ground on which the wife sought for the husbands medical check up is to find out as to whether the husband is sexually potent or not, as according to the wife, the rift in the matrimonial relationship emerged only due to the alleged impotency of husband. The lower Court, after hearing both sides allowed the I.A. and directed the husband to subject himself to the medical check up. Being disconcerted and aggrieved by the said order, this civil revision petition is focused on various grounds, inter alia thus: The order of the lower Court was passed without application of mind on the part of the learned Judge. No reason has been found set out in the order and it is a non-speaking order. The wife is bent upon harassing the petitioner, as she had already lodged a complaint as against the husband with the police. Only during enquiry, the truth will come to limelight. Instead of resorting to enquiry, the Court simply allowed the application. 3. Despite printing the names of both sides, no one appeared. 4. A bare poring and perusal of the relevant records, including the order of the lower Court, would display and demonstrate, express and expatiate that on the one hand the husband would state that the wife was not co-operative to have sexual relationship with him. But on the other hand the wife would impute impotency on the part of the husband. A bare poring and perusal of the relevant records, including the order of the lower Court, would display and demonstrate, express and expatiate that on the one hand the husband would state that the wife was not co-operative to have sexual relationship with him. But on the other hand the wife would impute impotency on the part of the husband. The lower Court observed that the cumulative effect of the averments of the husband and the wife would clearly indicate and evince that there was no sexual relationship which took place between them. It is the husband who approached the Court seeking divorce and he never wanted the wife to be subjected to any medical examination about her sexual potency or disinclination to have sexual relationship with the husband. But on the other hand, the wife, taking up the risk, came forward with a categorical version that the husband is impotent and that he should be subjected to medical check up. If, after medical check up, the husband is found to be sexually potent, then the wife is certain to lose her case on the ground that she was guilty of having approached the Court with false case. 5. When the factual matrix is such, I could see no reason on the part of the husband to shy away from medical check up. Above all, the husband, by subjecting himself to medical check up would not in any way prejudiced. In fact, as observed by me above, if really he is potent, his case would be strengthened. There is no point in going on adducing ad nauseam oral evidence relating to potency or otherwise of the husband. Only the medical check up would enable the Court to arrive at a correct and firm conclusion relating to potency or otherwise of the husband. Hence, I could see no infirmity in the order passed by the lower Court. 6. In the result, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed. No costs.