ORDER
1. This revision petition is against the order appointing a Commissioner-Doctor preferably Civil Surgeon rank and M.D. for scientific investigation of the petitioner in the main O.P. to know whether he is impotent or not and whether he is able to consummate the marriage. O.P.93/1979 was filed by the husband for restitution of conjugal rights the contention of the wife is that the husband is impotent and during the pendency of the original petition the wife filed an interlocutory application for the appointment of a Commissioner. In the counter-affidavit the allegation of impotency is denied and it is stated that the question of examination by competent Doctor does not arise. The Court below held that if the respondent is not suffering from any defect no harm would be caused to him if he is sent for medical examination and in this view the application is allowed.
2. In Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 459 a suit by husband under the Indian Divorce Act to declare the marriage void on two grounds namely the wife was impotent and the consent was obtained by fraud. It is also alleged that the wife was suffering from incurable syphilis. After reference to the evidence it was concluded that full investigation of the case was not done and the case was remanded for trial. In the course of giving directions for the investigation of fraud and consideration of impotency the Division Bench Consisting of Mookerjee, A.C.J. and Chaudhuri, held as follows:
'We may add that it is necessary that there should be a proper medical examination of the person of the respondent.'
3. Referring to the power of the Court to order physical examination it is held as follows:
'The Courts naturally exercise wide discretion in ordering physical examination and always do so subject to such conditions as will afford protection from violence to natural delicacy and sensibility'.
In George Swamidoss Joseph v. Sundari Edward, (1954) 67 Mad LW 676 the decree for nullity of marriage was sought for by the husband on the ground of impotency or due to her incapacity to consummate the marriage. In the context of considering the adequacy of evidence for proving impotency Ramaswamy, J. of the Madras High Court held as follows, at p.680.
'While the confessions or admissions of either party are admissible to prove his or her impotency, they are not generally regarded sufficient unless corroborated. That a Court having jurisdiction to pronounce decree of nullity on the ground of impotency has power also to direct a proper medical and surgical examination of the person of the parties whenever this is necessary, is well settled in England'.
'In this country it may be held that by necessary implication the Court is armed with all the usual powers which in England are deemed requisite to ascertain the fact of incapacity and without which it would be impossible for any Court to exercise such a jurisdiction in ordering the examination, and do so subject to such conditions as will afford protection from injuries to natural delicacy and sensibilities'.
4. In Sreeramamurthy v. Lakshmikantham, : AIR1955AP207 the suit was filed by the plaintiff for partition and recovery of 1/3 rd share on the ground that her husband died divided from his brothers and alternatively it is prayed that if the partition is not true she is entitled to 1/3rd share in the non-agricultural properties for maintenance and further it was contended by the petitioner that the plaintiff gave birth to a child subsequent to her husband's death and being unchaste is not entitled to recover any maintenance. Thereupon the application was filed on 14-2-1953 to find out by medical examination whether the 1st respondent gave birth to a child at any time. The Court below held that the respondent could not be compelled to undergo medical examination. The learned advocate for the petitioner contended that under S. 14 of the Evidence Act the facts showing the existence of any state of body is relevant fact and that he is entitled to lead evidence to show that the respondent was enceinte after her husband's death. In this context Umamaheswaram J. held that it is impossible to ascertain after a lapse of four years as to whether the respondent was enceinte and had given birth to a child. It is observed that S. 151 cannot be invoked in the circumstances and the personal liberty is infringed by compulsion of medical examination. In Ranganathan Chettiar v. Lakshmi Achi, : AIR1955Mad546 it is held that there is no statutory provision by a Doctor and apart from cases of lunacy there is no provision enabling the medical examination. It is further held that the Court might draw an adverse inference against the party who refused to be examined by himself or herself.
5. In K. Aiyar v. Govindaswami, : AIR1966Mad443 it is held that the District Munsif who functioning as an Election Court acted beyond his powers in directing the petitioner to appear before the Medical Officer for the purpose of examining the fact whether he was suffering from leprosy. In Bipinchandra v. Madhuriben : AIR1963Guj250 it is held that a compulsion to undergo medical examination is certainly an interference with the person liberty could only be interfered with under the provision of any penal enactment or in the exercise of any other coercive process vested in the court under the law. In Revamma v. Shanthappa, AIR 1972 Mys 157 an application was filed alleging impotency and for issuance of a direction to the wife to submit herself to medical examination by the lady doctor. Regarding the power of the court to issue such a direction Datar, J. held as follows at page 159:
'In a case where a party alleges that a person is impotent or suffering from other incurable disease, it is for the person making such allegation to prove the same. A party cannot be compelled to undergo medical examination'.
In Wigmore on evidence, Volume VIII. III edition, at page 168, it is stated as follows:
'The courts can as well command a witness to let jury, or qualified experts, inspects his premises, his chattels, or his person, as to produce his documents'.
It is further stated at page 169 as follows:
'(c) As to witness living body, whether by self-exhibition to the jury at the trial, or by inspection of experts out of Court, there is ample authority denying any privilege of non-disclosure; the trial Courts still decline to take this liberal view, even in cases where this form of evidence is most necessary, as on a charge of rape or of slander of chastity. It is astonishing that Courts are so tardy in ignoring the propriety of getting at the truth by direct and simple methods, especially when modern science can here be of such assistance. Notable examples of the vital necessity of resorting to modern scientific methods are seen in the inquiry into paternity by blood group examination and into the credibility of woman complainant in sex-crimes by psychiatric examination'.
In Phipson on Evidence, 10th Edn. At page 13, it is stated: 'An inspection of a lady's mouth by a dentist was however, refused under these rules (or.19 and O.23 R.14 Country Court Rules 1936) as not being any property or thing the subject matter of the section irrespective of the above, however, medical inspection of a party may be ordered in various cases. E.g. in Chancery to determine pregnancy, in nullity suits on the ground of impotence'.
6. The human body is the most ancient apparatus and defied probe and vulnerability to diagnosis and treatment of ailments for long time. The human intellect generated by the human body unravelled the mysteries and complications in the human body and the process of experimentation from several years, dissection of anatomy scientific analysis and modern scientific approach contributed to discovery of diverse methods of diagnosis of deficiencies and ailments and treatment of the same. There is a gradual change over from oral diagnosis and treatment to discovery of deficiencies pricisely by scientific data and effective and expeditious treatment by prescription of medicines and surgery. The transplantation of heart and other parts of the body, scanning the body to detect deficiencies and malfunctioning, invasive diagnosis and treatment yielded dividends of minimising wear and tear of the body and thereby improving the longevity and quality of life though the avoidance of final exit is not in sight. The close affinity between law and medicine is demonstrated by medical jurisprudence. The physician as an expert witness has become a common and welcome feature in Courts ranging from opinions on nature and degree of injuries to the proximate cause of death in criminal cases, assessment of insanity and several other situations. When there is a dispute between the wife and husband about the potency of either of them their evidence reflected by truth constitutes the cream of evidence and the marshalling of adventitious or extraneous circumstances afford a poor substitute. In the event of diametrically opposite and rival versions of the parties the recourse to medical test resolves the riddle and the medical opinion assumes the acceptable piece of evidence. In the present atmosphere of looking forward to progeny of artificial insemination, scientific probe by virginity tests and the knowledge of pre delivery sex the depreciation of the importance of determination of potency by medical test does not bear the impress of realistic approach-
The Calcutta High Court in AIR 1921 Cal 459 (supra) and Madras High Court in (1954) 67 Mad LW 676 (supra) held that the Court has wide power to appoint commissioner-doctor to examine the person in the event of dispute about potency. In : AIR1955AP207 (supra) Umamaheswaram, J. held that it is impossible to ascertain whether the wife gave birth to a child after lapse of five years. This decision is far removed from the situation arising in this case and having realised the impossibility of ascertaining the birth of a child the observations made regarding infringement of Art. 21 and the absence of provision can be considered as obiter. The decision of the Madras High Court in : AIR1955Mad546 (supra) is in conflict with earlier decision of the same Court in 67 Mad LW 576 (supra). The decision of the Madras High Court in : AIR1966Mad443 (supra) is concerned with the power of the election Court and not applicable. The decision of the Gujarat and Madras High Courts are directly concerned with the determination of potency with the aid of a Doctor and I am unable to agree with the views propounded in the said decisions reported in : AIR1963Guj250 and AIR 1972 Mys 157 (supra).
7. The examination of mental or bodily state is not excluded by S. 14 of the Evidence Act. The exposure to medical examination aided by scientific data cannot be construed as deprivation of personal liberty and breach of Art. 21 of the Constitution.
8. The Order of the Court below is confirmed. C.R.P. dismissed. No costs. Petition dismissed.