- Bookmark
- Share
- CaseIQ
Amol Chavhan v. Smt. Jyoti Chavhan .
Factual and Procedural Background
The petitioner challenged an order of the Court below (Annexure P-6) dated 2-9-2011. By that order the Court below allowed an application under Section 45 of the Indian Evidence Act and directed that the petitioner undergo medical examination before a medical board to ascertain whether he is impotent. The wife had filed a proceeding under Section 12 of the Hindu Marriage Act, 1955, alleging the husband's impotency. The petitioner filed a reply/application and also sought medical examination of his wife; the Court below allowed the wife's application and rejected the petitioner's request to have his wife examined on the stated ground that the petitioner was neither the applicant/plaintiff in the main proceeding nor had he made allegations against his wife in a petition.
Legal Issues Presented
- Whether the Family Court can issue a direction for medical examination of a party.
- Whether such a direction for medical examination infringes any fundamental rights including rights flowing from Article 21 of the Constitution.
- Whether, given that a direction was issued for medical examination of the husband, a similar direction needs to be issued against the wife in the facts of this case.
Arguments of the Parties
Petitioner's Arguments (as advanced by Shri Aniket Naik)
- The Court below erred in allowing the wife's application for medical examination and directing the petitioner to be medically examined because the petitioner was neither the applicant/plaintiff before the Court below nor had he made allegations against his wife by filing any petition.
- The Court below's order was beyond jurisdiction because a party cannot be compelled to undergo medical examination; the Court cannot use inherent powers (Section 151 CPC) to force medical examination.
- Relied upon multiple precedents (including AIR 1966 Allahabad 150; Jagdish Lal v. Smt. Shyama Madan; AIR 1969 AP 167 Adapa Vittal v. Govula Ramakistian; AIR 1972 Mysore 157 Smt. Revamma v. Sri Shanthappa; P. Sreeramamurthy v. P. Lakshmikantham; Ranganathan Chettiar v. Chinna Lakshmi Achi; AIR 1981 Madras 349 N. Venkatachalapathy v. Sarqja) to support the proposition that courts lack power to compel medical examination against a party's will.
- Argued by analogy to Article 20(3) of the Constitution and Article 21 (personal liberty): no one can be forced to become a witness against himself and forcing medical examination infringes personal liberty.
- Alternatively, if the wife's application for medical examination was allowed, the petitioner's application to have the wife examined should also have been allowed on the same basis.
Respondent/Wife's Position (as reflected in the opinion)
- The wife filed a petition under Section 12 of the Hindu Marriage Act, 1955, alleging the husband's impotency; she applied under provisions referenced as Section 45 of the Evidence Act for medical examination to determine the truth of that allegation.
- The wife's specific factual allegation (impotency of the husband) furnished the factual foundation for seeking the husband's medical examination.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1966 Allahabad 150; Jagdish Lal v. Smt. Shyama Madan and others | Relied upon by petitioner's counsel as authority regarding medical examination (referenced generally). | The counsel conceded that the judgment showed a consent order for medical examination and therefore would not be a binding precedent; the Court did not rely on it as decisive authority. |
| AIR 1969 AP 167, Adapa Vittal v. Govula Ramakistian and others | Relied upon by petitioner's counsel in support of the proposition that courts should not compel medical examination. | Mentioned as part of petitioner's reliance; the Court did not treat it as controlling in light of later Supreme Court authority. |
| AIR 1972 Mysore 157, Smt. Revamma v. Sri Shanthappa | Held that under Section 55 CPC the Court does not have inherent power to compel medical examination; absence of statutory provision to compel medical examination under HMA, CPC or Evidence Act. | Quoted by petitioner; used by Court as part of the body of subordinate decisions but ultimately distinguished in light of higher court authority permitting medical examination in appropriate cases. |
| P. Sreeramamurthy v. P. Lakshmikantham, AIR 1955 Andhra 207 | Held a statutory provision is required to compel medical examination; not proper to rely on general inherent powers under Section 151 CPC to restrict personal liberty. | Relied upon by petitioner to challenge the order below; Court considered it but followed subsequent Supreme Court authority permitting medical examination under Section 151 in matrimonial proceedings. |
| Ranganathan Chettiar v. Chinna Lakshmi Achi, AIR 1955 Mad 546 | Held that it is not open to the Court under Section 151 CPC to order medical examination of a party against consent; such order treats a human being as a material object and is impermissible. | Relied by petitioner to argue excess of jurisdiction; Court noted this line of authority but found later Supreme Court decisions to permit medical examination in appropriate matrimonial cases. |
| AIR 1981 Madras 349, N. Venkatachalapathy v. Sarqja | Madras High Court held a person cannot be directed to be examined medically against her wish; dismissal of application to compel exam was upheld. | Relied upon by petitioner; Court acknowledged it but held that later Supreme Court authority supersedes that restrictive view for appropriate cases. |
| G. Venkatanarayanan v. Kurupati Laxmi Devi, AIR 1985 AP 1 | Held that in matrimonial proceedings the Court can appoint a doctor/commissioner to examine a party; such an order is not excluded by Section 14 of the Evidence Act nor does it deprive personal liberty under Article 21. | The trial Court's exercise of discretion to order medical examination was supported by this precedent; the present Court followed its reasoning to uphold the order below. |
| Lalit Kishore v. Meeru Sharma and another, (2009) 9 SCC 433 | Supreme Court held that invoking Section 151 CPC, medical examination of a party in Hindu Marriage Act proceedings is permissible; Family Court may pass such an order in appropriate cases. | This Supreme Court decision was treated as decisive. The present Court relied upon it to hold that the Family Court could direct medical examination and that the order below was not in error. |
| Sharda v. Dharmpal, (2003) 4 SCC 493 | Three-Judge Bench observed medical examination by experts in matrimonial matters may lead to the truth and remove misunderstandings; supports allowing medical examination in appropriate cases. | The Supreme Court's observations in Sharda were relied upon (by Lalit Kishore and by the present Court) to justify permitting medical examination as evidence in matrimonial proceedings. |
| Makbool Husain v. Bombay High Court, AIR 1953 SC 325 | Interpreted Article 20(3) as protection applicable to criminal proceedings; Article 20(3) deals with criminal matters and does not furnish an analogue for matrimonial civil proceedings. | The Court used this precedent to reject the petitioner's analogy to Article 20(3) as unhelpful for resisting a medical examination order in matrimonial proceedings. |
Court's Reasoning and Analysis
The Court framed three pivotal questions: (1) whether the Family Court can direct medical examination of a party; (2) whether such direction infringes fundamental rights including Article 21; and (3) whether an order for the husband's examination necessitates a similar order against the wife.
The Court accepted the factual premise that the wife filed a petition under Section 12 of the Hindu Marriage Act alleging the husband's impotency, and that the truth of that allegation was central to the proceeding. The Court observed that the Court below exercised discretionary and inherent powers (referenced as Section 151 CPC and Section 45 Evidence Act in the record) to permit the medical examination.
On the first question the Court relied primarily on higher authority. It referred to G. Venkatanarayanan v. Kurupati Laxmi Devi (AIR 1985 AP 1) where a matrimonial court was held capable of appointing a medical commissioner and that such direction is not barred by Section 14 of the Evidence Act nor inconsistent with Article 21. The Court then recognized the Supreme Court's decision in Lalit Kishore v. Meeru Sharma ((2009) 9 SCC 433) as dispositive: the Apex Court held that under Section 151 CPC a Family Court can, in appropriate cases, order a medical examination in matrimonial proceedings despite the absence of an express provision in the Hindu Marriage Act. The Court also noted the three-Judge Bench observations in Sharda v. Dharmpal that medical examination by experts may lead to the truth of the matter.
Accordingly, the Court concluded that a Family Court has inherent jurisdiction under Section 151 CPC to direct medical examination in suitable matrimonial proceedings and answered Question No.1 against the petitioner. The Court held that the Court below's decision to direct the petitioner's medical examination was a plausible exercise of discretion and not susceptible to interference under Article 227 in the absence of jurisdictional error.
On the second question the Court held there was no infringement of Article 21 (personal liberty) in proceeding of this nature where the issue is impotency and where the Court has inherent power to direct a medical test; it followed the reasoning in Lalit Kishore and G. Venkatanarayanan that medical examination aided by expert evidence does not amount to unconstitutional deprivation of personal liberty.
On the third question the Court observed that the wife's petition under Section 12 contained specific allegations against the husband (impotency), whereas there were no counter-allegations pleaded by the petitioner against the wife (such as adultery or incapacity). The Court emphasized that Courts appoint experts or order medical examinations on the basis of the allegations and averments made; in the absence of a factual foundation or pleadings by the petitioner, there was no occasion for the Court below to direct medical examination of the wife.
The Court also rejected the petitioner's attempt to rely on Article 20(3) by analogy, noting that Article 20(3) pertains to criminal proceedings and is inapplicable to the civil/matrimonial context as explained with reference to Makbool Husain.
Holding and Implications
DISMISSED
Holding:
- The Court held that the Court below rightly directed medical examination of the petitioner and therefore the petition challenging that order is dismissed.
Implications:
- Direct effect: The impugned order directing the petitioner to undergo medical examination is upheld; the petition is dismissed and no costs were awarded.
- Legal consequence as stated in the opinion: the decision follows and applies existing Supreme Court authority (notably Lalit Kishore and Sharda) permitting a Family Court, under its inherent power (Section 151 CPC), to direct medical examination in appropriate matrimonial proceedings. The Court found no jurisdictional error or apparent illegality warranting interference under Article 227.
- No new legal principle or precedent was created by this opinion; the Court applied and followed earlier Supreme Court decisions to resolve the questions presented.
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 submit 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-he 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 AP 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 Paras 4 and 5, the Mysore High Court opened that under Section 55, CPC the Court does not have any inherent power to compel a person to undergo medical examination. Paras 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 Vs. P. Lakshmikantham, AIR 1955 Andhra 207, when an order was passed directing medical examination, it was held that thee 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 Section 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 a 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. Sarqja. 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 n 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 submit 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 1-51 of the CPC/Section 45 of Evidence Act. The subsequent judgment G. Venkatanarayanan Vs. Kurupati Lcixmi Devi, AIR 1985 AP 1, shows that such a direction can be given by the Court below to ascertain the real position. In G. Venkatanamyan Vs. Kurupati Laxmi Devi (supra), 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 part 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 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 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 reintegrate in view of the judgment of Supreme Court in Lalit Kishore Vs. Meeru Sharma and another, (2009) 9 SCC 433. The Apex Court held by invoking Section 151 that medical examination of a party in Hindu Marriage Act proceedings is permissible. Paras 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 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 the 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 Vs. 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 :- (SCC p. 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), can be followed and since there is an inherent power under Section 151, CPC 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 Makbool Husain Vs. Bombay High Court, AIR 1953 SC 325, 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) is 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.
Alert