1. These two civil revision petitions arise out of a common order dated 29-3-1996 in I.A No. 345 of 1992 in H.M.O.P No. 16 of 1992 and I.A No. 1179 of 1995 in O.S No. 1297 of 1995 on the file of the Principal Subordinate Judge, Tiruchirapalli.

2. The aforesaid two petitions were filed by the husband against the wife. First one is for sending the respondent for medical examination to find out whether she remained virgin, while the other one was for direction against her to produce the letters written by the petitioner to her.

3. The short facts leading to this peculiar type of petitions are as follows: The petitioner was a divorcee and after he contracted the marriage again with the respondent on 14-12-1991 and the same was registered on 16-12-1991. Even though they lived together for some time happily at Madras, the respondent went away from the matrimonial home. Hence, he has filed HMOP No. 16 of 1992 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. As a counter blast, the respondent filed O.S No. 1297 of 1995 for declaration that her marriage with the petitioner is void.

4. The defence was that the attempt of the petitioner was only to harass and humiliate the respondent. There is no necessity for examining her medically and for production of the letters. She also contended that there was no bona fide at all in the two petitions. The petitioner committed fraud by misrepresenting to her that she would be taken to Russia and believing his representation she was persuaded to agree for the marriage, while she was very young and the petitioner was middle aged.

5. It should also be noted that the petition for restitution of conjugal rights was filed at Madras, while the suit for declaration was filed at Tiruchirappalli and pursuant to an order passed for transfer by the High Court, both the applications have been directed to be tried by the Principal Subordinate Judge, Tiruchirappalli. That is why both the cases were taken up by the Principal Subordinate Judge, Tiruchirappalli.

6. After considering the arguments advanced on both sides, the Principal Subordinate Judge, Tiruchirappalli, rejected both the applications. Hence, the husband has come to this Court by way of the aforesaid two revision petitions.

7. The learned counsel for the petitioner Mr. N. Jothi, after taking through the pleadings submitted that according to the respondent, there was no consummation of the marriage and from the beginning there was no cordial relationship existed between the petitioner and the respondent. The learned counsel contended as per Order 11, Rule 4 of Civil Procedure Code, his client is entitled to call upon the respondent to produce the letters which would show that there was cordial relationship. Further, the medical examination of the respondent would show that there was consummation of the marriage and only for the said purpose, the applications have been filed. He added that it is not correct to state that the applications have been taken out with any mala fide intention or for harassing or humiliating the respondent. As the evidence is required, the applications were filed.

8. On the other hand, the learned counsel for the respondent Mr. T. Murugamanickam, contended that the attempt is only to humiliate and annoy the respondent. Petitioner's idea is only to insult and cause injury to the respondent. That apart, the attempt of the petitioner itself shows how bad the conduct of the petitioner is. According to the learned counsel for the respondent, a genuine husband would not make such attempts to spoil the life of the respondent.

9. I will consider first, the application under Order 11, Rule 14 of Civil Procedure Code relating to the production of the letters alleged to have been written by the petitioner to the respondent. As per Order 11, Rule 14 of Civil Procedure Code, the Court has power to order production of a document relating to any matter in question, in possession or power of a party. The three ingredients are; (a) that the document must be in possession or in power of a party; (b) the document must relate to any matter in question; and (c) that the Court must think as right to produce the documents. It is needless to point out that the third one is a consequent upon the earlier two ingredients. Therefore, if the Court thinks that the document relates to a matter in issue and it is in the custody of a party, the Court should deem it lawful to order production. In India Foils Ltd. v. 5th Ind. Tribunal, AIR 1972 Cal 308, a single Judge of the Calcutta High Court held that the Court must satisfy itself and record a finding to the effect that the documents are in the possession or power of the party against whom the order is sought and they relate to the matter in question before the Court. Here in this case, the main issue involved are:—

(1) Whether the petitioner is entitled for restitution of conjugal rights; and

(2) Whether the marriage of the petitioner with the respondent is a void one;

10. In the plaint in O.S No. 1297 of 1995, the respondent has asserted that the defendant with some calculated inner motives and with skilful and attractive talks, poisoned the mind slowly and steadily and thereby lured the plaintiff by saying that she can have an excellent prospect at Russia like his daughter at Russia. He mesmerised the plaintiff by repeatedly praising that she had inborn and inherited talent and all that can be brought out from her only if she accompany him to Moscow in Russia and for taking her to Moscow and that would be possible for him only when the plaintiff was his wife and she calm down when he said that the marriage would be only for paper purpose for taking passport. The further allegation that after the marriage, she realised that the petitioner had cheated her she managed to reach the safe hands of her parents. In substance, the respondent says that the marriage and the registration were done by defrauding her. As against these allegations, the defendant in his written statement denied the allegation of fraud and undue influence and he has stated that the respondent was employed as a part-time employee in his business activities at Trichirapalli. Both of them were moving together with full knowledge of public as well as her parents. The respondent stated that the age of the petitioner never stood in between them and these statements encouraged him to move more closely with her. He has denied about the persuasion by him to take her to Moscow. The affection between him and the respondent was known to the parents and relatives. She has written a letter on 11-11-1991 informing her intention to marry the petitioner. It is also alleged that the respondent urged him to marry her and she married him voluntarily with her free will and volition. She was aged 24 years and had completed B.Com, degree course, that astrologer was also consulted for the marriage and only at the advice of the astrologer, the exchange of garlands at Vadapalani Murugan temple before the sun rise was performed. It is also stated that after the marriage, she wrote a letter on 20-12-1991 after his return from Trichy expressing her utmost happiness in the said letter about the marriage. She praised and thanked him for having married her. According to the petitioner, only the parents of the respondent are preventing the respondent from joining him. They have caused intimidation and unnecessary harassment. In the petition for restitution of conjugal rights, the petitioner has alleged that after the marriage, they were living together at Devar Colony, 1st Cross Thillainagar, Trichy-18 till 10-1-1992. It is the respondents 2 and 3 who took away the first respondent by compulsion and coercion. Thus the respondent was forcibly removed by them from the custody. In the counter, the allegations in the plaint in O.S No. 1279 of 1995 are repeated.

11. So, from the above, it can be inferred that the marriage was on account of duress, coercion and cheating, according to the respondent, while according to the petitioner, it was voluntary and after the marriage the spouses lived happily and the marriage was also consummated. But on account of the parents only, the respondent was separated. On the aforesaid aspects, definitely, the letters written by the petitioner to the respondent during the years 1989 to 1991 will throw some light. Therefore, it can be inferred that the letters do relate to the matter in question.

12. The next question is whether these letters are in the custody of the respondent. In the affidavit filed in support of the application I.A No. 1179 of 1995, the petitioner has stated that himself and the respondent exchanged letters each other. He was in receipt of numerous letters from the plaintiff, likewise, he wrote letters to the plaintiff and they are in her custody. The letters are necessary for better defence. In the counter, she has stoutly denied the possession of such letters. In addition to the above, in the memorandum of grounds in paragraph 4, it is stated as follows:

“It is pointed out by the petitioner with the production of the letters written by the respondent to the petitioner which inter alia states and admits the same being an answer or the reply letter in respect of the several letters written by the petitioner to the respondent herein. In spite of the same being submitted before the Court and the contents of the same being read by the Court, verified by the Court which could easily lead to the truth that the letters in the custody of the petitioner is the answer to the letters of the petitioner written to the respondent. In spite of all this demonstration before the Court neither marked those documents on the side of the petitioner herein nor directed the respondent to produce the documents that is the letters written by the petitioner available with the respondent.”

13. In the affidavit filed in support of the petition for stay in paragraph 4, the petitioner has stated as follows:

“The Court below has not appreciated the issue involved in the dispute between the parties. It is incorrect on the part of the Court below to state that I have not stated what is the purpose of the petition. It has been clearly mentioned in the affidavit filed in support of the petition that the marriage was solemnised and we lived as husband and wife and to substantiate the same I.A No. 345/92 was filed.”

14. In spite of all these specific assertions, the respondent has not chosen to deny the same by filing a counter. The Civil Revision Petitions are pending from August, 1996. It is also worthwhile to note the learned Judge, who ordered notice of motion has stated the notice was taken on behalf of the respondent in the C.R.P No. 2020 of 1996 on 23-8-1996 itself. On the same day, stay also was granted. But till date, no counter has been filed on behalf of the respondent to deny the averments contained in the memo of grounds as well as the affidavit mentioned above. This necessarily leads to a conclusion that the respondent should have received some letters written by the petitioner.

15. The learned Principal Subordinate Judge has dealt with the production of letters in paragraph 7 of his order. He has found that as the petitioner has not stated about the dates of the letters and as the respondent has denied the existence of such letters, he has rejected the petition. But we have found that the respondent should have received some letters from the petitioner and she must be in custody of the same.

16. It is no doubt true that the Court cannot compel the production of letters. But however, it can pass order and if the order is disobeyed, the Court has to resort to Order 11, Rule 21 of Civil Procedure Code. For the foregoing reasons, I am of the view that the order of the learned Principal Subordinate Judge rejecting the application I.A No. 1179 of 1995 is unsustainable and the C.R.P No. 2021 of 1996 has to be allowed.

17. Coming to the other question as to whether the petitioner is entitled to have the respondent medically examined for the purpose of establishing the virginity. The question involved in this Civil Revision Petition is a very delicate one, especially as it relates to the physical status of a fair sex. But as the petitioner is none other than her own husband, we cannot throw it out at the threshold itself, as it could have been done if the request or the prayer is from a third party unconnected with the proceedings. We have already indicated that the issue involved in this case is that whether the marriage was consummated or not. It is no doubt true that the examination of the kind required will certainly prove the status of the woman/respondent, one way or the other. But it is not the only method by which the petitioner can prove that the marriage was out of volition and not on account of duress and cheating. It is admitted by the petitioner himself that they were living together as husband and wife at Devar Colony, 1st Cross Thillainagar, Trichy, till 10-1-1992 after the marriage on 14-12-1991. It is asserted that they were living happily. To decide whether the marriage was contracted out of volition or by duress the status of the respondent after the marriage may not be very essential. It is of course true that it will add to the defence of the petitioner, but at the same time when we consider the registration of the marriage, the qualification, namely, B.Com, and the age at the time of the marriage i.e, 24 years, the burden will be heavily upon the respondent to prove the allegations.

18. It is also to be taken note of that even if an order is passed compelling her to undergo the medical examination, yet the object cannot be achieved without the co-operation of the respondent. The order can be passed only on paper and it cannot be executed. The remedy available to the petitioner in such a circumstance is to request the Court to drew an adverse inference. As we have stated above, the adverse inference would be with reference to the status of the respondent, but from the adverse inference alone, the issue cannot be decided.

19. The learned counsel for the petitioner cited a number of authorities in support of his Contention that such medical examination can be ordered by Court. In Arun Kumar v. Sudhansu Bala, AIR 1962 Orissa 65 a Special Bench of the Orissa High Court held that when there are accusations and counter accusations of impotency, some corroborative evidence to support the statement to the effect that the marriage was not consummated was necessary. In such cases medical evidence should be valuable. The learned Judge relied on the Full Bench Judgment of this Court reported in Balavendran v. S. Harry, AIR 1954 Mad 316. In the said case, the divorce itself was sought for on the ground of impotency. Hence, the said case is not helpful to the petitioner.

20. Mathuram Augustine v. Vijayarani, (1979) 2 Mad LJ 301 : (AIR 1980 Mad 1) (SB) is also a case of nullity of marriage on the ground of impotency. Hence, this case also is not helpful to the petitioner.

21. The learned counsel for the respondent cited the following authorities in support of his contention that no one can be compelled to undergo medical examination.

1. Rm. P.M. Ranganathan Chettiar v. Chinna Lakshmi Achi, (1955) 1 Mad LJ 260 : (AIR 1955 Mad 546).

2. Krishnamurthi Ayyar v. Govindaswami Pillai, (1966) 2 Mad LJ 383 : (AIR 1966 Mad 443).

3. M. Venkatachalapathy v. Aroja alias Thangammal, (1981) 1 Mad LJ 440 : (AIR 1981 Mad 349).

4. Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 : (AIR 1993 SC 2295).

22. In Rm. P.M. Ranganathan Chettiar v. Chinna Lakshmi Achi, (1955) 1 Mad LJ 260 : (AIR 1955 Mad 546), the learned single Judge has held that to compel a party to be examined by a doctor against her consent and to pass such an order will be tantamount to treating a human being as a material object, which no Court can do it under its inherent powers.

23. In Krishnamurthi Ayyar v. Govindaswami Pillai, (1966) 2 Mad LJ 383 : (AIR 1966 Mad 443), Justice M. Natesan, has held that even in an election petition there is no warrant in the procedure now obtaining in the Civil Courts under the Code for an order for compulsory medical examination of a party against the wish of the party.

24. In M. Venkatachalapathy v. Saroja alias Thangammal, (1981) 1 Mad LJ 440 : (AIR 1981 Mad 349), Justice v. Ratnam, has held that it is settled law that a person cannot be directed to be examined medically against her wish.

25. In Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 : (AIR 1993 SC 2295), the Apex Court, while dealing the case of legitimacy of a third born during the marriage has held that no one can be compelled to give sample of blood for analysis. In the said case, the Apex Court did not allow the prayer of the husband to avoid payment of maintenance under Section 125 of Criminal Procedure Code. The Apex Court has further held that a strong case of non-access of the husband has to be made out by the person questioning the legitimacy on whom the burden of rebuttal of presumption of legitimacy lies.

26. The aforesaid cases go to establish that a Court cannot compel a person to submit himself or herself for a medical examination. On a consideration of the facts and circumstances of the case, I am of the view that the learned Principal Subordinate Judge, Tiruchirapalli was right in rejecting the I.A No. 345 of 1992. In the circumstances, C.R.P No. 2020 of 1996 is dismissed and C.R.P No. 2021 of 1996 is allowed. However, there will be no order as to costs. C.M.P Nos. 11243 and 11244 of 1996 are dismissed.

27. Order accordingly.