Judgment : In a Matrimonial Suit for divorce filed by the wife against her husband on the ground of cruelty under Section 27(1)(d) of the Special Marriage Act, 1954, the opposite party (wife) filed an application under Section 151 of the Code of Civil Procedure for referring her husband, the petitioner (herein) to a medical expert for his medical examination for ascertaining his potency on the following grounds: i) Is the husband Sandip Kumar Dasgupta impotent for commission of acts of sexual intercourse? ii) Is the husband Sandip Kumar Dasgupta sexually established and strong to complete the act of penetration and discharge? The petitioner (husband) contested the wife’s said application by filing an objection stating therein that before accusing the husband regarding his sexual incapacity, the wife should submit a report that there was no full penetration of the main organ of her husband in her by examining herself by the medical expert. It was further stated therein that the husband was quite capable of giving full satisfaction to the wife sexually. It was further stated therein that at the time of their sexual enjoyment after their marriage, the wife expressed her full satisfaction physically and mutually on several occasions. A Doctor’s certificate was also submitted by the husband/petitioner wherein the husband was certified as sexually capable person. The husband thus prayed for dismissal of the wife’s said application for referring him to medical expert for his examination. The learned Trial Judge was pleased to allow the wife’s said application by the impugned order being order No. 16 dated 21st April, 2010 passed in Matrimonial Suit No. 736 of 2008. By the said order the C.M.O.H., Hooghly, was directed to form a Medical Board consisting of specialist Doctors for medical examination of Sandip Kumar Dasgupta on proper identification, to answer the points as mentioned above, after medically examining him, within one month from the date of order and for submission of report before the learned Trial Judge by 1st July, 2010. The husband was thus directed to appear before the Medical Board on the date to be fixed by the C.M.O.H., Hooghly, for his medical examination with a rider that in default, adverse inference shall be drawn against him while disposing of the present Matrimonial Suit. The propriety of the said order is under challenge in this application under Article 227 of the Constitution of India before this Court. The propriety of the said order is under challenge in this application under Article 227 of the Constitution of India before this Court. Heard Mr. Dutta, learned Advocate, appearing for the petitioner and Mr. S.P. Ray Choudhury, learned Senior Counsel, appearing for the opposite party. Considered the materials on record including the order impugned. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. At the very outset this Court wants to mention that this is not a suit where the marriage between the parties was sought to be declared as nullity on the ground of impotency of the husband under Section 24(1)(ii) of the Special Marriage Act, 1954. It is a case where the wife has sought for a decree for divorce on the ground of cruelty under Section 27(1)(d) of the said Act. The acts of cruelty, both mental and physical were crystallized by the wife in her divorce petition under paragraphs 11, 12 and 13 therein. The grounds of cruelty made out by the wife in these paragraphs are set out hereunder: “11. That the few instances of physical and mental cruelty meeted out by the respondent to the petitioner are mentioned below: a) On 22.01.07 the respondent assaulted the petitioner on her head. b) The respondent and his parents of and on abused the petitioner with filthy language. On 08.6.07 the respondent hurled abuse on the petitioner by calling her a cheap girl. c) In between the period of 20.01.2007 to 24.01.2007, the petitioner was not allowed to take food by the respondent or his family members. d) The respondent was suspicious by nature. The respondent tried to restrict the petitioner’s movement excepting when she went out to earn by taking part in musical programmes. e) That the physical assault on the petitioner by the respondent continued without any rhymes or reason. The respondent even threatened to keep the petitioner under lock and key. f) On 18.04.2008 the mother of the petitioner went to her matrimonial home. The respondent flew into rage on seeing his mother-in-law. He abused his mother-in-law in filthy language and further humiliated the petitioner by calling her as a whole in from of her mother. 12. That be it mentioned the respondent pressurized the petitioner to bring money from her father. The respondent flew into rage on seeing his mother-in-law. He abused his mother-in-law in filthy language and further humiliated the petitioner by calling her as a whole in from of her mother. 12. That be it mentioned the respondent pressurized the petitioner to bring money from her father. The respondent stated that he would invest it in the business. The father of the petitioner was forced to give to the respondent a sum of Rs.3,20,000/- in the month of February, of 2007 and Rs.80,000/- in the month of March of 2008 fearing his refusal would and in torture of his beloved girl. The respondent bought two old vehicles with the amounts. With the first instalment in 2007 he bought a Tata Sumo and with the second instalment in 2008 he bought a Maruti Suzuki 800 Car. 13. That in May, 2008 the midst of this miserable life the petitioner got a chance to perform in a Television reality show in ZEE BANGLA CHANNEL in vocal music. She grabbed the opportunity with both hands hoping this would bring a little solace in her life. Whenever the petitioner came home from the shouting of her show the respondent on one pretext or another assaulted and abused the petitioner. The petitioner finally lost all strength to bear this torture meted out by the respondent.” If the grounds of cruelty on which divorce was sought for by the wife as mentioned above are taken into account, this Court finds that the husband’s sexual incapacity and/or his impotency was not made out therein as a ground for divorce. The wife stated in paragraph no.7 of the divorce petition that the wife discovered on the very night of Fullsajjya on 2nd December, 2006 that the husband is sexually vulnerable. It was further stated therein that the husband was physically unstable and weak to complete the act of penetration and discharge. The wife stated therein that the wife had nothing to curse except her own fate. She further stated therein that she ate her humbly pie and refrained herself from making any disclosure because she alone was fully responsible for her intimacy and love with her husband before her marriage which ultimately culminated in their marriage. The wife stated therein that the wife had nothing to curse except her own fate. She further stated therein that she ate her humbly pie and refrained herself from making any disclosure because she alone was fully responsible for her intimacy and love with her husband before her marriage which ultimately culminated in their marriage. Thus the averments made by the wife in her divorce petition show that the alleged impotency of her husband was accepted by her and she never claimed that her sexual dissatisfaction resulted in cruelty either physically or mentally. Rather she condoned such deficiency of her husband and fixed her responsibility to herself for such a situation. Thus on overall consideration of the averments made by the wife in her divorce petition, this Court finds that she has not prayed declaration of their marriage as nullity on the ground of impotency of her husband. Further she has never referred to the alleged impotency of her husband constituting a ground of divorce as her sexual dissatisfaction causing her mental and/or physical cruelty, in the said divorce petition. Furthermore, impotency of a spouse is not a ground for divorce recognised under the Special Marriage Act. Thus if the relief claimed in the suit, is not founded on the ground of impotency of the husband, the medical examination of the husband for answering the questions as mentioned by the opposite party in her said application, is quite irrelevant for the purpose of disposal of the dispute involved in the suit. Mr. Ray Choudhury, learned Senior Counsel, appearing for the opposite party, cited the following decisions of the Hon’ble Supreme Court to support his statements that the allegations of impotency of the husband, are of such nature which cannot be established without medical evidence and also to strengthen his argument that the Court while dealing with the Matrimonial Suit, are not incompetent to direct medical examination of the party against whom the allegation of impotency was made in the divorce petition:- i) In the case of Vinita Saxena vs. Pankaj Pandit, reported (2006) 3 Supreme Court Cases 778; ii) In the case of Lalit Kishore vs. Meeru Sharma & Anr. reported in (2009) 9 Supreme Court Cases 433; iii) In the case of Radhika Gupta vs. Darshan Gupta reported in (2005) 11 Supreme Court Cases 479. Though this Court fully agrees with the submission of Mr. reported in (2009) 9 Supreme Court Cases 433; iii) In the case of Radhika Gupta vs. Darshan Gupta reported in (2005) 11 Supreme Court Cases 479. Though this Court fully agrees with the submission of Mr. Ray Choudhury, learned Senior Counsel, to the effect that in a case where any of the spouses claims relief in any Matrimonial Suit on the ground of impotency of the other spouse, the dispute of such nature cannot be decided without referring the spouse against whom such allegation is made, to the medical expert for his opinion, but still then this Court holds that in the present case where the petition for divorce is not founded on the allegation or mental cruelty arising out of impotency of the husband, no useful purpose will be served by referring the husband to the medical expert for his examination with regard to the points as mentioned by the wife in her said application. Accordingly this Court holds that the impugned order is liable to be set aside. The impugned order thus stands set aside and the revisional application is thus allowed. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.