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2014 DIGILAW 2832 (MAD)

B. Madhan v. N. S. Shanthakumari

2014-08-22

S.TAMILVANAN

body2014
ORDER : The revision has been preferred challenging the order dated 15-4-2013 made in I.A. No. 1641 of 2012 in O.P. No. 1722 of 2012 on the file of the Principal Family Court, Chennai. 2. The petition in O.P. No. 1722 of 2012 has been filed under Ss. 12(1)(a) and 25 of Hindu Marriage Act, 1955, by Santha Kumari/respondent herein against the revision petitioner-B. Mathan, seeking an order that the marriage between the revision petitioner and the respondent held on 19-4-2012 at Sri Raghavendra Kalyana Mandapam, Singarachariar Street, Triplicane, Chennai-600 005, as null and void on account of non-consummation of the marriage on the ground of impotency and fraud being committed by the revision petitioner herein. The respondent herein has also further sought a direction against the revision petitioner to pay Rs. 50,00,000/- to the respondent towards permanent alimony. 3. In the application in I.A. No. 1641 of 2012, the respondent herein prayed before the Court below, to direct the revision petitioner to undergo medical examination by a competent Urologist and Psychiatrist to assess his status of potency by means of penile Intra Corporeal Pressure (PICP) Test and Duplex Doppler Penile Ultrasound (DDPU) or any other scientific tests to give a scientific opinion regarding potency of the revision petitioner to determing physical and mental potency in respect of consummation of marriage, pending disposal of the main O.P. 4. It is seen that the revision petitioner herein, as respondent in the Interlocutory Application in I.A. No. 1641 of 2012, had filed his counter seeking to dismiss the aforesaid application, however, by order, dated 15-4-2013, the Interlocutory Application in I.A. No. 1641 of 2012 was allowed by the Court below, whereby the petitioner herein and the respondent herein were directed to appear before the Malar Fortis Hospital, Adyar, Chennai, for a thorough Andrological and Gynaecological examination of both, by qualified doctors. The order reads that they are also to be subjected to thorough psycho-diagnostic and psychiatric test to find out whether any of them suffering from sychological dysfunction in sex. Aggrieved by the aforesaid order, the respondent in I.A. No. 1641 of 2012 has preferred the present revision petition. 5. The revision petitioner has stated that the finding of the Family Court holding that the proper medical test should be by an expert Urologist for deciding the potency of the revision petitioner/husband, is not sustainable in law. Aggrieved by the aforesaid order, the respondent in I.A. No. 1641 of 2012 has preferred the present revision petition. 5. The revision petitioner has stated that the finding of the Family Court holding that the proper medical test should be by an expert Urologist for deciding the potency of the revision petitioner/husband, is not sustainable in law. It is further stated that the revision petitioner had undergone thorough medical examination for a period of two months in the Government Hospital accompanied by police in a criminal proceeding by Doctors who conducted a detailed medical examination based on the copy of FIR furnished by police, hence further test is not required. 6. Dr. C. Ravichandran, learned counsel appearing for the revision petitioner submits that the order for examination of the petitioner herein on the ground of lack of genuine medical examination is not correct. The other defence raised by the learned counsel for the revision petitioner is that the respondent had not co-operated to have consummation and she had not submitted any medical certificate to prove that she has been physically and mentally normal and also a virgin. It is further contended that the Court below ought to have seen that the revision for filing the application seeking for re-examination or medical test by a private hospital would not be useful, as already Government doctor had examined and gave medical report. 7. In the accompanying affidavit, the respondent herein, who was the applicant in I.A. No. 1641 of 2012 has stated in para 3 as follows : I have been obliged to make a serious allegation of Impotency, Mental Psychological problems on the part of the respondent which has resulted in the ruination of my life, that too within 13 days of the marriage. I would not have ventured to make such serious allegations if there was no truth in my allegations reading the physical and mental capacity of the respondent in leading a happy married life as is normally expected from husband. 8. It is an admitted fact that the marriage between the petitioner and the respondent had taken place on 19-4-2012 and the respondent herein specifically stated in her affidavit that there had been no consummation of marriage at any point of time after 19-4-2012. 8. It is an admitted fact that the marriage between the petitioner and the respondent had taken place on 19-4-2012 and the respondent herein specifically stated in her affidavit that there had been no consummation of marriage at any point of time after 19-4-2012. In the counter filed by the revision petitioner herein, as respondent of the application before the Court below, he has admitted the fact in para 15 that after the marriage, for consummation a function was arranged in the house of the respondents eldest brother, at New Perungalathur on 19-4-2012, however, the respondent herein had not co-operated for consummation saying that she was afraid of consummation saying that would be painful and asked the petitioner to postpone the consummation, however, it was suppressed in the petition. He has also admitted that on the next day, the petitioner herein and the respondent left for their honeymoon to Ooty from the respondents-house at Triplicane, as arranged by their family members. 9. It is seen that in para No. 17, the petitioner herein has stated that the respondent had continuously refused for consummation even during the honeymoon in Ooty. It is further stated by the petitioner herein that on 22-4-2012 at Ooty, the respondent herein had asked the applicant to buy alcohol for the respondent saying that after consuming alcohol, she would co-operate for consummation and also compelled the applicant to consume alcohol with her. However, the respondent did not co-operate with the revision petitioner to have consummation and the same was suppressed by her. However, the aforesaid allegation has been denied as false by the respondent herein. It is clear from the counter filed by the revision petitioner before the Court below that there had been no consummation taken place between the petitioner and the respondent as stated by the respondent herein. 10. Learned counsel appearing for the respondent submits that the medical test would establish that there was no consummation between the petitioner and the respondent, hence, till date the respondent remains a virgin. Had the revision petitioner been not suffering from impotency, there could be no possibility for non-consummation between them either immediately after their marriage, when there was a function arranged for consummation between them or during their honeymoon at Ooty. Had the revision petitioner been not suffering from impotency, there could be no possibility for non-consummation between them either immediately after their marriage, when there was a function arranged for consummation between them or during their honeymoon at Ooty. Hence, it was submitted by the learned counsel for the respondent that the revision petitioner has been suffering from impotency and that was the reason for non-consummation between the petitioner and the respondent. 11. On the aforesaid facts and circumstances, learned counsel for the respondent submitted that the respondent is entitled to get a declaration that the marriage that had taken place on 19-4-2012, at Chennai, as a nullity on the ground of non-consummation of marriage due to impotency and fraud of the revision petitioner as contemplated under Ss. 12(1)(a) and 25 of Hindu Marriage Act, 1955. It is further submitted that the matrimonial life of the respondent herein has been affected to the maximum level, hence, she is entitled to get proper compensation as prayed for and in order to prove the fact before the Court below, it was necessitated to file the Interlocutory Application seeking medical examination by a competent Urologist and Psychiatrist to assess the status of potency of the revision petitioner by way of Penile Intra Corporeal Pressure (PICP) Test and Duplex Doppler Penile Ultrasound (DDPU) Test or other scientific tests and to receive scientific opinion regarding the potency of the revision petitioner herein and also test by a Gynaecologist to decide the virginity, claim of the respondent herein even after her marriage. It is also argued by the learned counsel for the respondent that there is no error or illegality in the order passed by this Court below so as to warrant any interference by this Court, as the Malar Fortis Hospital, Adyar, Chennai, is a reputed and recognised Speciality Hospital having experts and facilities to conduct the Test properly. 12. Earlier, the test was conducted in a criminal case relating to the FIR. However, the scope of the test was limited and further, it is argued that the brother of the revision petitioner had accompanied the revision petitioner, while the test was conducted, which is not in dispute. 12. Earlier, the test was conducted in a criminal case relating to the FIR. However, the scope of the test was limited and further, it is argued that the brother of the revision petitioner had accompanied the revision petitioner, while the test was conducted, which is not in dispute. Learned counsel for the respondent submits that there is reasonable grounds to have the doubt that the test could have been conducted by way of impersonnation of the brother of the revision petitioner, otherwise, there could be no need for the revision petitioner being accompanied by his brother while conducting the important tests. Therefore, suspicion raised by the respondent herein cannot be ruled out, on the said facts and circumstances. 13. It is an admitted fact that the respondent herein is a Lady Advocate, at the age of 35 years and it was an arranged marriage between both the parties, however there was no consummation between them. The allegation of the respondent is that there could be no consummation, on account of the alleged impotency and fraud of the revision petitioner. At the request of both the learned counsel, the matter was adjourned for amicable settlement between the parties, by making permanent alimony/compensation for the respondent-wife by the revision petitioner-husband. However, as the offer made by the revision petitioner was not accepted by the respondent, as inadequate, hence the matter could not be settled between the parties. 14. In District Registrar and Collector v. Canara Bank, reported in (2005) 1 SCC 496 : ( AIR 2005 SC 186 ), the Honble Supreme Court referring the earlier decision rendered in Jane Roe v. Henry Wade, 410 US 113 (1973) and other decisions, has ruled that right of privacy is not an absolute right under Art. 19(1)(a) and Art. 21; and any State intrusion could be a reasonable restriction if it has reasonable basis or reasonable materials to support it. The decision referred to above reads as follows : Mathew, J. stated that, however, the right to privacy was not absolute : and that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness as explained in Olmstead v. United States, 277 US 438 : 72 L Ed 944 (1928), US at page 71 : the privacy right can be denied only when an important countervailing interest is shown to be superior, or where a compelling State interest was shown. (Mathew, J. left open the issue whether moral interests could be relied upon by the State as compelling interests). Any right to privacy, the learned Judge said (see para 24), must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-bearing. This list was however not exhaustive. He explained that, if there was State intrusion there must be a reasonable basis for intrusion. 15. The Hon’ble Apex Court has categorically held that right of privacy, in any event would necessarily have to go through a process of case-by-case development. Hence, right of privacy is admittedly not an absolute right, which is subject to reasonable restrictions and in this matter, the allegation is that the revision petitioner had suppressed his impotency before the marriage, hence medical examination by an expert doctor and conducting the tests as per Medical Procedure is a vital aspect, to decide whether the respondent herein is entitled to have declaration that the marriage between the petitioner and the respondent as nullity on the ground of non-consummation of marriage due to impotency and fraud committed by the revision petitioner, as contemplated under Ss. 12(1)(a) and 25 of the Hindu Marriage Act, 1955. 16. In Sarda, appellant v. Dharmpal, respondent, AIR 2003 SC 3450 (1), a three-Judge Bench of the Hon’ble Apex Court has held that the Court has implicit power to direct medical examination of a party to a matrimonial litigation which cannot be held to be violative of ones right of privacy and the said decision is squarely applicable to the facts and circumstances of the revision, the case on hand. 17. 17. As per the decision rendered by the Hon’ble Apex Court in the three-Judge Bench, the Court should exercise such a power, if the applicant has a strong prima facie case and there is sufficient material before the Court and despite the order of the Court, if the husband of the respondent refuses to submit himself for medical examination to decide the alleged impotency, the Court would be empowered to draw an adverse inference against him. 18. In the light of various decisions rendered by the Hon’ble Apex Court, it is made clear that the Court has implicit power to direct for medical examination of a party to a matrimonial litigation to meet the ends of justice which cannot be construed as violative of ones right of privacy. The Court should exercises such a power, if there is prima facie case made out and there is sufficient materials before the Court to order for medical examination to decide the impotency. In the instant case, it is not in dispute that in the interlocutory application in I.A. No. 1641 of 2012, the revision petitioner was subjected to medication examination earlier in a criminal case. However, he was admittedly accompanied by his brother and the same was not disputed by the revision petitioner herein. According to the learned counsel for the respondent, the brother of the petitioner could have been subjected to the test instead of testing the revision petitioner, to decide the alleged impotency of the petitioner properly. 19. It is an admitted fact by both parties that there has been no sexual intercourse between the petitioner and the respondent, though there was an arrangement for consummation function immediately after their marriage in the residence of the elder brother of the respondent (wife), at New Perungalathur on 19-4-2012 and subsequently, both the petitioner and the respondent were sent to Ooty to have their honeymoon. During their honeymoon at Ooty, though both were staying in the same room as husband and wife, admittedly, there was no consummation between the parties which would strengthen the version of the respondent, herein. 20. Learned counsel for the respondent submitted that had the petitioner been potential, the arrangement of consummation function on 19-4-2014 and subsequently, sending the parties for honeymoon to Ooty, would not have resulted in vain without consummation. 20. Learned counsel for the respondent submitted that had the petitioner been potential, the arrangement of consummation function on 19-4-2014 and subsequently, sending the parties for honeymoon to Ooty, would not have resulted in vain without consummation. As it is a matter relating to matrimonial life of the parties, merely on the ground of privacy, the petitioner cannot raise any legal defence. As held by the Hon’ble Supreme Court, directing the revision petitioner for medical examination in a matrimonial dispute cannot be construed as violative of his right of privacy and further, the respondent herself has stated by way of filing her affidavit that she remains virgin on account of the impotency of the revision petitioner and she is also ready for Gynaecological examination to establish that till date she is virgin. When she is ready and willing to undergo the test by a qualified Gynaecologist, the objection raised by the revision petitioner, husband of the respondent against undergoing proper medical test cannot be justified, as a sustainable legal ground of privacy. 21. It is not in dispute that the Court below had directed both the parties to appear before the Malar Fortis Hospital, Adyar, Chennai, for thorough Andrological and Gynaecological examination respectively, subject to Psycho-diagnostic and psychiatric evolution so as to find out any of them suffering from psychological dysfunction in sex. It is also not in dispute that the Malar Fortis Hospital Adyar, at Chennai, is one of the reputed and recognised Speciality Hospitals, having experts and advanced equipments to conduct the test, hence, the Court can take judicial notice in respect of the same. 22. It cannot be disputed that there is no legal bar against any woman either on the ground that she is a divorcee or a widow to have a legally valid marriage and, therefore, virginity of a woman is not a required qualification prescribed under law to have a valid marriage. However, it is clear that impotency of the husband leading to non-consummation of the marriage is a ground to declare the marriage a nullity, under S. 12(1)(a) of the Hindu Marriage Act, 1955, which reads as follows : 12. However, it is clear that impotency of the husband leading to non-consummation of the marriage is a ground to declare the marriage a nullity, under S. 12(1)(a) of the Hindu Marriage Act, 1955, which reads as follows : 12. Voidable Marriage : (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity of any of the following grounds, namely : [(a) that the marriage has not been consummated owing to the impotence of the respondent; or] Sub-section (1)(a) has been substituted by an amendment to S. 12 of the Hindu Marriage Act (68 of 1976) with effect from 27-5-1976. As per S. 25 of the Act, the respondent-wife herein is entitled to seek permanent alimony on the said ground. It is admitted by both parties that there was no consummation between the revision petitioner and the respondent herein, though there had been a function arranged for consummation after their marriage and subsequently they went for Honeymoon to Ooty, on the said circumstances, the allegation of the respondent, wife against the revision petitioner, cannot be ignored by any Court. In the light of the decisions rendered by the Hon’ble Apex Court, the medical test being conducted to decide whether the marriage has not been consummated owing to the impotence of the revision petitioner is not against his privacy. In fact, the Fundamental Rights guaranteed under Art. 19(1)(a) towards freedom of speech and expression for telling the truth before the Court is in her favour, though the averments of the respondent with original petition are to be established by her. Similarly, Art. 21 relating to protection of life and personal liberty which enables the respondent, wife of the revision petitioner to live with human dignity, as decided by the Hon’ble Apex Court, hence, it is protecting her legal right available under S. 12(1)(a) and S. 25 of the Hindu Marriage Act, which has been guaranteed under Art. 21 of the Constitution. The said provisions of law are not supporting the case of the revision petitioner, though he has referred Arts. 19(1)(a) and 21 of the Constitution. 23. Having considered the facts and circumstances, this Court is of the view that the defence raised by the revision petitioner is not legally sustainable. The said provisions of law are not supporting the case of the revision petitioner, though he has referred Arts. 19(1)(a) and 21 of the Constitution. 23. Having considered the facts and circumstances, this Court is of the view that the defence raised by the revision petitioner is not legally sustainable. Hence, this revision petition is liable to be dismissed, on the ground that there is no error or infirmity in the impugned order passed by the Court below so as to warrant any interference by this Court and challenging the order would be construed as a delay tactics, as submitted on the side of the respondent herein. It is also made clear that the Court below shall pass appropriate further orders, towards the Medical Test being conducted by expert doctors and get the reports within four weeks from the date of receipt of a copy of this order. On the facts and circumstances, the expenses shall be met out by the revision petitioner. 24. Considering the nature of the matrimonial dispute, the Court below is directed to dispose of the O.P. No. 1722 of 2012 on merits, uninfluenced by the findings of this Court, if any, in this order, within a period of four months from the date of receipt of a copy of this order. 25. With the above observation, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed. Petition dismissed.