HADIYA FIRDOUSE, AGED 25, D/O. K.K.MOHAMED HYDER, KOLLIYILHOUSE, KODUNGALLUR, THRISSUR DISTRICT, NOW RESIDING AT POST BOX NO.4020, PURCHASING DEPARTMENT MINISTRY OF INTERIOR, DOHA, STATE OF QATAR Vs. ABDUL VAHAB @ VAHAB, S/O. SULTAN MOIDEEN, KANJIRAPARAMBU HOUSE, VEDIMARA, MANNAM P.O., NORTH PARAVOOR, ERNAKULAM DISTRICT

JUDGEMENT

(1.) The respondents in O.P. No. 156 of 2010 of the Family Court, Ernakulam is before us challenging Ext.P1 order of the said court in I.A. No. 1766 of 2016 in O.P. No. 156 of 2010. As per the impugned order, the Family Court has directed that the petitioner herein be referred to a Medical Board consisting of a lady Gynaecologist to examine and report whether the marriage of the petitioner was consummated or whether the petitioner is still a virgin. According to the petitioner, such examination as directed by Ext.P1 is absolutely irrelevant and unnecessary for the purpose of deciding the issues in controversy before the said court. It is further contended that, a petition for identical relief, that was earlier filed by the very same respondent, was dismissed by the Family Court. Though the same was challenged before this Court, this Court had also confirmed the order of the Family Court. For the said reason also, it is contended that Ext.P1 order is unsustainable and liable to be set aside.

(2.) According to Adv. Alan Papalli, who appears for the petitioner, there are two Original Petitions pending before the Family Court, Ernakulam, O.P. Nos. 156 of 2010 and 159 of 2010. O.P. No. 156 of 2010 is filed by the respondent herein seeking a decree for restitution of conjugal rights. O.P. No. 159 of 2010 is filed by the petitioner herein seeking a decree for dissolution of the marriage solemnized between them on the ground of fraud, coercion, threat, deceit etc. It is contended by the counsel that, in the nature of the reliefs sought for in the petitions, which are being tried together, the question of ascertaining whether the marriage has been consummated or not does not arise for consideration. The basic issue that arises for determination is only whether the marriage was valid or not and whether the petitioner was living separated from the respondent for justifiable reasons or not. In view of the above, it is contended that the present petition to subject the petitioner to a medical examination is only intended to harass and spite her. The counsel also vehemently contends that ordering of such medical examination is an intrusion into the right of privacy guaranteed to her by Art. 21 of the Constitution of India. The counsel places reliance on the decision of the Apex Court in support of this contention. Apart from the above, according to the learned counsel, a petition for identical reliefs had been filed by the respondent in the very same Original Petition. The said petition had been considered by the Family Court and dismissed, as evidenced by Ext.P6 order. The respondent had thereafter filed a petition to review the said order, unsuccessfully. Not satisfied, the respondent had carried the matter before this Court in O.P.(F.C.) No. 4557 of 2012. The said Original Petition was also dismissed by this Court as per Ext.P7 judgment, confirming the order of the Family Court. In view of the above, the present petition ought to have been dismissed by the Family Court, it is contended. The counsel also takes strong objection to the timing of the present petition. According to the counsel, the proceedings are of the year 2010 and the matter is only being protracted for one reason or the other. Faced with the necessity of having the matter brought to an end expeditiously, the petitioner had approached this Court by filing O.P.(F.C.) No. 6 of 2016. As per Ext.P10 judgment, this Court had directed both the Original Petitions to be disposed of within a period of three months from the date of receipt of a copy of the said judgment. In spite of the above, it is contended that the matter is being kept pending at the instance of the respondent. Since the Family Court has omitted to take into account any of the above factors, the counsel submits that Ext.P1 order is liable to be interfered with and set aside.

(3.) Adv. G. Hariharan, who appears for the respondent, on the other hand contends that though an earlier petition had been filed by him for an identical relief, the same had been dismissed only for the reason that, the court felt such medical examination was unnecessary at that stage. Placing reliance on the concluding portion of Ext.P6 order, the counsel points out that the Family Court had specifically mentioned that the same was rejected only for the time being. In view of the above, according to the counsel, the said proceedings do not preclude the right of the respondent to seek the very same relief at this point of time. It is contended that, the evidence in the case is over, and in the nature of the evidence that has come on record, it has become necessary to prove that the marriage had been consummated. According to the counsel, there is no other method of proving that the marriage had been consummated, except by having the petitioner subjected to a medical examination. It was considering the above facts that the Family Court has allowed the prayer of the respondent. Therefore, it is contended that, there are absolutely no grounds to interfere with the impugned order Ext.P1. In support of his contention that, the conduct of such medical examination is not a violation of the right to privacy enshrined under Art. 21 of the Constitution of India, the counsel places reliance on the decision of the Supreme Court in Dipanwita Roy Vs. Ronobroto Roy ((2015) 1 SCC 365) .