1. This C.R.P is filed as against the order of the Subordinate Judge, Eluru in I.A No. 196/53 in O.S No. 53/52 dismissing an application filed by the petitioner to direct the medical examination of the 1st respondent, as to whether she had become enceinte and given birth to a child at any time. The suit was filed by the plaintiff 1st respondent for petition and recovery of a ⅓rd share of the suit properties, on the grounds, that her husband died divided from his brother's the petitioner and the 2nd respondent herein. Alternatively, she prayed that, if the partition was found to be not true, she was entitled to a ⅓rd share in the non-agricultural properties and for maintenance. It was contended by the petitioner that the plaintiff had given birth to a child subsequent to her husband's death and being unchaste, she was not entitled to recover any maintenance. Issue 8 was raised in regard to the question of the 1st respondent's chastity.
2. The present 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 followed the judgment of Raghavarao, J. in Polavarapu Venkateswaralu v. Polavarapu Subbayya 1951 I M.L.J 580., and held that the respondent could not be compelled to undergo medical examination. The learned advocate for the petitioner contended that under Section 14 of the Indian Evidence Act facts showing the existence of any state of body is a relevant fact and that he is entitled to lead evidence to show that the respondent was enceinte after her husband's death. The respondent's advocate does not challenge that position that evidence may be let in to prove that fact. The only question is, whether there is any power in a court to compel an unwilling party to be medically examined. The petitioner's advocate has not drawn my attention to any specific provision in the Code of Civil Procedure of in the Indian Evidence Act, for compelling the attendance of a party for medical examination. It is on that very ground that the learned Judge, Raghavarao, J. held in Polavarapu Venkateswarlu v. Pollavarapu Subbayya that such an application was not maintainable. Section 151 of the Civil Procedure Code was next sought to be relied on, as conferring power on the court to pass such an order. The learned advocate for the respondent contended that such an examination would offend the provisions of Article 21 of the Constitution which enacts that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” As pointed out in A.K Gopalan v. State Of Madras. A.I.R 1950 S.C 21 at 93..
“The right to the safety of one's life and limb and to the enjoyment of personal liberty in the sense of freedom from physical restraint and coercion of any sort are the inherent birth rights of a man. The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of “freedom” to do particular things…………… An individual can be deprived of his life of personal liberty only by action of the State either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law…………… There must be a susbtantive law, under which the State is empowered to deprive a man of his life and personal liberty and such law must be a valid law which the Legislature is competent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the constitution lays down.”
3. In the absence of any statutory provision compelling the medical examination of a party, and restricting the enjoyment of personal liberty of that person it is not right to rely upon the general or inherent powers of the court under Section 151 C.P.C to achieve that purpose. The examination of a party as a witness is however warranted by the provisions of the Code of Civil Procedure. Medical Examination is in certain cases specifically provided as under the terms of the Indian Lunacy Act. I therefore follow the decision of Raghavarao, J. in Polavarapu Venkatesmrlu v. Polavarapu Subbayya and agree with the Court below that the respondent cannot be compelled to undergo medical examination.
4. Moreover, it is impossible to ascertain, after a lapse of four years as to whether the respondent was enceinte and gave birth to a child. Taylor in his Treatise on Principles and Practice of Medical Jurisprudence (Vol. II) discusses this question at pages 64 to 68. At page 64 he states:—
“In some strong and vigorous women the body resumes its natural state within a few days, and the traces of parturition may have become so ambiguous as to furnish no satisfactory evidence. In others proof of delivery may be obtainable for a fortnight or three weeks afterwards. In most cases, however, it is difficult to say after the lapse of eight or ten days that delivery has certainly taken place, the signs having partially disappeared.”
5. The passages in Modi's Medical Jurisprudence and Toxicology and Lyon's Medical Jurisprudence for India are to the same effect. At page 368 of Lyon's book the question “Has this woman ever been delivered of a child” is answered by Dr. Meadows as follows:— “No certain answer can be given except in the case of recent delivery. So, in my opinion even if such a medical examination is to be ordered, it will throw no light on the question.”
6. The learned Advocate for the petitioner relied on paragraph 5 of the counter affidavit to show that the 1st respondent had no objection to undergo medical examination. I do not think that is a correct reading of paragragh 5. The Respondent contended that the to application was not maintainable and that the court had no jurisdiction to direct her medical examination but that if her objection was over-ruled, she had no objection to be examined by an efficient lady doctor at the cost of the petitioner. There is, therefore, no substance in this contention of the petitioner.
7. In the result the C.R.P fails and is dismissed with costs.
J.V.S
8. Revision dismissed.