Family Court Can Order Medical Test Even If Solemnisation Of Marriage Is Denied: Andhra Pradesh High Court Orders Husband's Potency Test

In a recent civil revision petition, Justice B.S. Bhanumathi of Andhra Pradesh High Court referring to Supreme Court ruling in Sharda v. Dharmpal (1985) held that a matrimonial Court has power to order a person to undergo medical test and it cannot be contended that the relief cannot be granted merely because the marriage was denied by a party.

The petitioner filed main petition to annul the marriage between the petitioner and the respondent and also for grant of damages/compensation, marriage expenses.

According to the petitioner, the marriage was not consummated owing to impotency of respondent. Furthermore, the petitioner alleged the misbehaviour on part of respondent i.e. physically harassing her and also demanding her to bring additional dowry.

The respondent filed his counter denying the solemnization of marriage. According to him, this petition was filed to blackmail him for money.

Thereafter, the petitioner filed a petition under Section 45 of Indian Evidence Act for direction to respondent to undergo medical examination to assess his status of potency in order to prover her case through scientific evidence.

The petition was opposed mainly on the ground that there is no marriage and there is no relationship of husband and wife.

The Trial Court dismissed the petition making observations regarding proof of marriage and also stating that the matter is at fag-end of the stage of proceedings. The petitioner thus filed this revision petition under Article 227 of the Constitution against the order of dismissal.

The counsel for petitioner submitted that the ground taken by the revision petitioner can be decided only by the opinion of an expert. He placed reliance on the decision of Supreme Court in Sharda v. Dharmpal (1985) and a decision of the Andhra Pradesh High Court in G. Venkatanarayana v. Kurupati Laxmi Devi (1985).

The counsel for the Respondent contended that without there being any evidence of the alleged marriage, granting the relief claimed by the petitioner amounts to collection of evidence which has no relevance. The evidence placed by petitioner would show only the ceremony of betrothal, but not marriage as alleged.

The court referred to the ruling of Supreme Court in Sharda (supra) as follows:

“86. To sum up, our conclusions are1. A matrimonial court has the power to order a person to undergo medical test.2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”

The court held that the petition for respondent to undergo medical test should be allowed to secure material evidence to enable the matrimonial court to decide the matter on merits even if it is filed at a belated stage.

As a consequence, the Civil Revision Petition was allowed.

Case Title: X v. Y

Citation: 2023 LiveLaw (AP) 50

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