ZINDA BEGUM Vs. MUSTAQUE AHAMED

JUDGEMENT

(1.) The plaintiff is the petitioner. The suit is filed by her for dissolution of marriage with the defendant-respondent which was performed on 22-12-2002 and for consequential relief seeking a direction to the defendant respondent to return the Dehaj articles which were given to the defendant as per the list at the time of marriage. The reason for seeking dissolution of the marriage is that the defendant is impotent and is unable to perform matrimonial obligations. After service of summons, the respondent-defendant entered appearance and has contested the proceedings inter alia denying that he is impotent or he is unable to perform the matrimonial obligations. He would further submit that the marriage was consummated on the dale of the marriage itself. In the circumstances, he would seek for dismissal of the suit. A specific averment is made by the defendant-respondent in the written statement that he is willing to undergo medical check-up if directed by the Court. He has also taken up a defence that the plaintiff also be directed to undergo medical check-up so as to ascertain her virginity. On these pleadings as many as five issuses were framed as under :

(2.) In view of the first issue which is framed, an application I.A. No. 1 is filed by the petitioner-plaintiff under O. 26, R. 10-A read with S. 151 of the Code of Civil Procedure requesting the Court to direct the respondent-defendant to subject himself for medical examination as suggested by him in para 14 of his written statement. Identically another application was filed by the respondent-defendant, which is numbered as I.A. No. 2 seeking a direction to the plaintiff-petitioner to undergo medical check-up so as to ascertain her virginity. The learned trial Judge after hearing both applications has directed the petitioner-plaintiff to be examined by a Gynaecologist of KIMS Hospital who was appointed as a Commissioner so as to ascertain the virginity. Insofar as the application of the plaintiff-petitioner is concerned, seeking a direction to the defendant-respondent to undergo test is concerned, the trial Court has directed the defendant to undergo potency test at the hands of Head of Urologist Department. KIMS Hospital. The impugned order is produced at Annexure 'G.'

(3.) I have been taken through the impugned order with the assistance of the learned counsel appearing for the petitioner. It is no doubt true that directing either of the parties to undergo medical test in the circumstances is certainly warranted. The question is whether the defendant should be subjected to medical test or the plaintiff also should be subjected to identical test. It is to be noted that the specific case made out by the plaintiff-petitioner is that the marriage could not be consummated, as the defendant-respondent was impotent and he was unable to perform the matrimonial obligations. In the circumstances, the question whether the plaintiff-petitioner is a virgin or not is wholly unnecessary. In the circumstances, the learned trial Judge could not have directed the plaintiff-petitioner to undergo virginity test at the hands of a Gynaeocologist at Hubli. The question whether the right of privacy is invaded in a matrimonial case where the parties are subjected to a medical test has been set at rest by the Apex Court in case of Sharda v. Dharampal, reported in AIR 2003 SC 3450. The Apex Court interpreting Art. 21 of the Constitution of India has ruled that the privacy of a person is not an absolute rule. In a matrimonial case directing the parties to undergo medical test, does not offend Art. 21 of the Constitution of India. The Apex Court has also cautioned that such power will have to be exercised only if the applicant has a strong prima facie case. The Apex Court in the case referred has held : 54. The right to privacy has been developed by the Supreme Court over a period of time. A Bench of eight Judges in M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 at 306, in the context of search and seizure observed that :