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2019 DIGILAW 151 (CAL)

Debosmita Gayen nee Guin v. Rudra Prasad Gayen

2019-01-30

SABYASACHI BHATTACHARYYA

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JUDGMENT : 1. The wife in a matrimonial suit has challenged an order whereby the petitioner/wife’s prayer for a medical examination of both parties with regard to impotency was turned down by the trial court. The primary grounds on which the trial court refused such prayer were that there was no specific allegation as to impotency and that the prayer portion of the application-in-question was evasive. 2. Learned senior counsel appearing for the petitioner argues that the examination sought was absolutely necessary for a complete adjudication of the suit. It was pointed out that the specific allegation levelled by the husband in the application under Section 25 of the Special Marriage Act, 1954, particularly in paragraph 22 thereof, was that the marriage between the parties was not consummated owing to wilful refusal of the present petitioner/wife to consummate the marriage. It is further pointed out that the petitioner, in denial, averred that the husband never performed his marital duty and assigned one reason or the other to avoid sexual union with the wife and that there might some physical defect in the opposite party/husband. It was also averred inter alia that there may be even some physical defect or some “effect in the mind” of the husband to avoid sexual intercourse. In such view of the matter, it is argued that it was absolutely necessary to examine both parties to ascertain the veracity of such allegations and counter-allegations. 3. Learned senior counsel appearing for the opposite party, on the other hand, argues that the present application was made merely to stall the suit which has already been pending for a long time. It is further submitted that the petitioner/wife has been harassing the opposite party/husband by filing several proceedings against the opposite party. It is further submitted that there were previous directions of this Court directing the suit to be heard out expeditiously without any unnecessary adjournment, which would be violated if the matter is stalled further. 4. Learned counsel further submits that no specific allegation as to any impotency of the husband was levelled either in the written statement or at any prayer proceeding before any forum. It is also submitted on behalf of the opposite party that the petitioner/wife had admitted in a different proceeding that she was no more willing to continue with the marriage. Learned counsel further submits that no specific allegation as to any impotency of the husband was levelled either in the written statement or at any prayer proceeding before any forum. It is also submitted on behalf of the opposite party that the petitioner/wife had admitted in a different proceeding that she was no more willing to continue with the marriage. In view of such admission and paucity of specific allegations as to impotency, it is submitted that the trial court was justified in refusing the prayer for medical examination. 5. A perusal of the pleadings of the parties reveals that although the term “impotency” was not used by the wife in her written statement or the husband for that matter in his petition under Section 25 of the Special Marriage Act, both sides levelled allegations of non-consummation of marriage between the parties due to inability of the either side respectively. Allegations of physical defects were also made in the pleadings, leading to the obvious conclusion that one of the relevant and germane issues in the suit would be as to whether the admitted non-consummation of marriage between the parties was owning to the physical/mental ‘inability’ of the petitioner or the opposite party. In such view of the matter, the medical examination as sought was necessary for a proper adjudication of the suit. 6. As regards the argument that the prayer in the application-in-question was vague as to what examination was sought, it is evident from the averments made in the said application that the medical examination sought was with regard to the impotency and/or physical/mental incapacity of the parties to have marital union. 7. In such view of the matter, the trial court acted without jurisdiction in refusing to grant the prayer of the petitioner for medical examination of the parties to ascertain the aforesaid facts. 8. As regards the delay in filing of the application, which question has been raised by the opposite party, it appears that the application was not filed too late, since the same was filed immediately before commencement of the petitioner/wife’s evidence and the medical report, if any, would in all probability be sought to be exhibited as evidence by the wife. As regards the delay in filing of the application, which question has been raised by the opposite party, it appears that the application was not filed too late, since the same was filed immediately before commencement of the petitioner/wife’s evidence and the medical report, if any, would in all probability be sought to be exhibited as evidence by the wife. Undoubtedly, in the event such a report is filed, both the sides will have an opportunity to use objections to the same and to cross-examination the expert, if necessary, and the husband will, if necessary, have an opportunity to recall his witness in respect of the said report. 9. Accordingly, C.O. No.356 of 2019 is allowed on contest, thereby setting aside the impugned order and directing the trial court to appoint a medical expert to hold an examination as prayed by the petitioner/wife for the purpose of ascertaining the sexual potency/impotency of both sides, both mental and physical, within a fortnight from the date of communication of this order to the court below. 10. It is made clear that such expert will be appointed at the cost of the petitioner/wife. In view of the long pendency of the matrimonial proceeding, the Additional District Judge, Sixth Court at Alipore is further requested to dispose of Matrimonial Suit No.61 of 2013 after the report of the expert is filed, as expeditiously as possible, preferably within six months from the date of communication of this order to the court below. The Additional District Judge is requested to make all endeavour to ensure due compliance of the outer limit for disposal of the suit by passing necessary orders. 10. There will be no order as to costs. Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.