Amol Chavhan Vs. Smt. Jyoti Chavhan - Court Judgment

1. The petitioner is aggrieved by order passed by the Court below (Annexure P-6) dated 2/9/2011. By this order the Court below has allowed the application under Section 45 of the Evidence Act and directed for medical examination of the present petitioner before the medical board to ascertain whether the petitioner is impotent or not?

2. Shri Aniket Naik, learned counsel for the petitioner submits that as against the application preferred by petitioner's wife under Section 45 of the Evidence Act (Annexure P-3), the present petitioner filed a reply/application and made a counter request for medical test of the wife as well. The Court below by Annexure P-6 has allowed the application of wife and rejected the application of present petitioner on the ground that present petitioner is neither applicant/plaintiff before the Court below nor he has made any allegations against his wife by filing any petition. The Court below opined that the basic controversy can be resolved if the petitioner is directed to appear for his medical examination before the medical board. By assigning aforesaid reasons, the Court below allowed the application of the wife and rejected the application of present petitioner. Shri Aniket Naik relied on AIR 1966 Allahabad 150 (para 2) (Jagdish Lal Vs. Smt. Shyama Madan and others) and AIR 1969 A.P. 167 (Adapa Vittal Vs. Govula Ramakistian and others).However, Shri Naik fairly submits that this judgment shows that it is a consent order for medical examination of wife. Therefore, this judgment will not be a binding precedent for the Court. He further relied on AIR 1972 Mysore 157 (Smt. Revamma Vs. Sri Shanthappa). In this case in para 4 and 5 the Mysore High Court opined that under Section 55 C.P.C. the Court does not have any inherent power to compel a person to undergo medical examination. Para 4 and 5 are reproduced as under:-

“4. In a case where a party alleges that a person is impotent or suffering from other such incurable disease, it is for the person making such an allegation to prove the same. A party cannot be compelled to undergo medical examination. As stated by the High Court of Gujarat.

“There is no provision under the Hindu Marriage Act or the Rules framed thereunder or in the Code of Civil Procedure or in the Indian Evidence Act or any other law which would show any power in the court to compel any party to undergo medical examination.”

A medical examination for ascertaining whether a person is insane or impotent are all cases in which unless by the law of the land a person can be compelled to undergo medical examination, an order directing a person to undergo medical examination would be clearly illegal and without jurisdiction. In P. Sreeramamurthy v. P.Lakshmikantham. AIR 1955 Andhra 207, when an order was passed directing medical examination, it was held that there must be some statutory provision under which it would be open to the court to compel medical examination of a party, thus restricting the enjoyment of personal liberty of the person. It was also held that in a case like this it was not right to rely upon the general or inherent powers of the court under Section 151 of the Civil Procedure Code. It may be pointed out that even medical examination is specifically provided as under the terms of the Indian Lunacy Act. In the absence of any provision, it is not competent to any party to compel the other party to undergo medical examination.

5. In the case of Ranganathan Chettiar vs. Chinna Lakshmi Achi, AIR 1955 Mad 546, it has been held that it is not open to the court under S. 151 of the Code of Civil Procedure to order a medical examination of a party against the consent of such party. To pass such an order is tantamount to treating a human being as a material object, which no court should do under its inherent power. It is, thus, clear that it is not open to the court to invoke Section 151 of the Code of Civil Procedure to order a medical examination against his consent. In that view, the order directing the medical examination of the petitioner is one which has been passed by the learned Judge in excess of his jurisdiction and the same is liable to be set aside.”

3. Shri Naik then relied on AIR 1981 Madras 349 (N. Venkatachalapathy Vs. Saroja). In para 3 of this judgment, the Madras High Court held that Court cannot direct medical examination. The Madras High Court ultimately held as under:- “These decisions, therefore, lay down that a person in the position of the respondent, cannot be directed to be examined medically against her wish. Since the respondent has opposed the application of the petitioner and had also denied the defect in her, it is clear that any medical examination, if ordered, would only be against her wish, which as stated earlier, cannot be done. Though the Court below has not proceeded on this ground, yet, the dismissal of the application by the learned District Judge could be sustained on this ground as well. There is absolutely nothing illegal or irregular in the order of the Court below dismissing the application filed by the petitioner. That order is perfectly correct and justified and deserves to be upheld. The civil revision petition fails and is dismissed with costs.”

4. Lastly, Shri Naik relied on analogy and principles which are analogous to Article 20 (3) of the Constitution. Shri Naik submits that none can be forced to become a witness against himself and such an order passed by the Court below hits Article 21 and right of personal liberty of the petitioner. In alternately, Shri Naik submits that if wife's application is allowed, for the same reason petitioner's application should have been also allowed by the Court below directing medical examination of wife.

5. I have heard the counsel for the petitioner at length and perused the record.

6. The pivotal questions are as under:-

(1) Whether the family court can issue direction for medical examination of a party?

(2) Whether such a direction of medical examination infringes any fundamental rights including rights flowing from Article 21 of the Constitution?

(3) Since a direction is issued for medical examination of husband, whether similar direction needs to be issued against wife in the facts situation of this case?

7. Admittedly, wife filed an application under Section 12 of the Hindu Marriage Act, 1955 against the husband mainly on the ground of alleged impotency of the husband. Thus, the basic question before the Court below is regarding the correctness of these allegations. The Court below exercised its discretionary and inherent powers and allowed the application under Section 151 of the C.P.C./45 of Evidence Act. The subsequent judgment AIR 1985 AP 1(G.Venkatanarayanan Vs. Kurupati Laxmi Devi) shows that such a direction can be given by the Court below to ascertain the real position. In AIR 1985 AP 1 (G.Venkatanarayanan Vs. Kurupati Laxmi Devi), the Court directed that in matrimonial proceedings the Court can appoint Commissioner doctor to examine a party and it is not excluded under Section 14 of the Evidence Act nor it deprives any personal liberty of a person under Section 21 of the Constitution. Relevant portion of this judgment in paras 6,8 and 9 are reproduced herein under:-

“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 unraveled the mysteries and complications in the human body and the process of experimentation for 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 precisely by scientific data and effective 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 divides of minimizing wear and tear of the body and thereby improving the longevity and quality of life through 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 marshaling of adventitious or extraneous circumstances afford a poor substitute. In the even 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 predelivery sex the depreciation of the importance of determination of potency by medical test does not bear the impress of realistic approach.

8. The examination of mental or bodily state is not excluded by Section 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 Article 21 of the Constitution.

9. The Order of the Court below is confirmed. C.R.P. Dismissed. No costs.”

8. This question is no more res-integra in view of the judgment of Supreme Court in (2009) SCC 433 (Lalit Kishore Vs. Meeru Sharma and Another). The Apex Court held by invoking Section 151 that medical examination of a party in Hindu Marriage Act proceedings is permissible. Para 2 to 7 of this judgment is reproduced as under:-

“2. In our view, the High Court as well as the Family Court was not justified in rejecting the application for medical examination of the respondent wife. It is difficult  to conceive that the Family Court cannot be conferred with the jurisdiction to pass an order for medical examination in an appropriate case because when such report is received, that would facilitate the court in giving a positive conclusion on the mental condition of the respondent wife.

3. It is true that the Hindu marriage Act, 1955 or any other law governing the field does not contain any express provision empowering the court to issue direction upon a party in a matrimonial proceeding to compel him to submit herself/himself to a medical examination. But, in our view, it does not preclude the court from passing such an order. The court is always empowered to satisfy itself as to whether a party before it suffers from mental illness or not, either for the purpose of taking evidence on the ground for which the matrimonial proceeding was started.(sic) .

4. It is well settled that the primary duty of the court is to see that the truth comes out. Therefore, although he medical examination of a party is not provided in the Act, even then, the court has complete inherent power in an appropriate case under Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.

5. In Sharda v. Dharmpal a three-Judge Bench decision of this Court has taken into consideration the power of the court to allow such an application for medical examination of a party in a matrimonial proceeding and observed as under: (SCCp.509, para 34).

“34. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms.”

6. In view of the aforesaid decision of this Court in Sharda and considering the fact that the report of the medical expert would only be an evidence in the proceeding, we do not find any reason why such an application for appointment of a medical expert to examine the respondent wife cannot be granted.

7. For the reasons aforesaid, the impugned order as well as the order of the Family Court are set aside. The application for appointment of a medical expert for medical examination of the respondent wife filed at the instance of the appellant husband is thus allowed. The appeal is thus allowed. There will be no order as to costs.”

9. Thus, in view of the judgment in Lalit Kishore (supra), I have no hesitation to hold that the view expressed by Madras High Court in G.Venkatanarayanan (supra) cannot be followed and since there is an inherent power under Section 151 C.P.C. with the Family Court to direct medical examination, the Court below has not committed any error of law in passing the impugned order.

10. The Apex Court in the aforesaid judgment has relied on Sharda Vs. Dharmpal reported in (2003) 4 SCC 493 to hold that medical examination by experts is permissible to ascertain the truth of the matter. In view of this, question No.1 deserves to be answered against the petitioner. The Court below took a plausible stand and, therefore, cannot be interfered in this proceeding under Article 227 of the Constitution.

11. So far the issue regarding infringement of petitioner's personal or fundamental rights flowing from Article 21 is concerned, in the opinion of this Court, there is no such infringement in a proceeding of this nature, where a question raised regarding impotency of petitioner by the wife, the Court has inherent power to direct the petitioner to undergo medical test.

12. So far the issue regarding direction for wife's medical examination is concerned, the petitioner's contention is misconceived. A divorce petition under Section 12 is filed by the wife making specific allegations against the petitioner. There is no allegation of adultery etc. against the wife and, therefore, the Court was under no obligation to allow the application of petitioner for medical examination of wife. Needless to mention that whenever Courts are required to appoint expert or require medical examination of somebody, it is always on the basis of allegations and averments  made by the party to ascertain the truth of the matter. In absence of any factual foundation and pleadings by the petitioner, there was no occasion for the Court to direct such a medical examination of the wife.

13. The scope of interference under Article 227 of the Constitution is well established and well defined. In the absence of jurisdictional error or apparent illegality, there is no scope of interference under Article 227 of the Constitution. Apart from this, analogy or assistance from Article 20(3) also cannot be taken. A plain reading of the language of the said article shows that it dealt with a protection with regard to criminal matters. In AIR 1953 SC 325 (Makbool Husain Vs. Bombay High Court), the Apex Court held that the article contemplates proceedings of the nature of criminal proceeding before a court of law (para 12). Thus, the analogy from Article 20(3) has also of no help to the petitioner.

14. In the result, I hold that the Court below has rightly directed medical examination of the petitioner. In the result, the petition is hereby dismissed. No costs.