SULABAI Vs. JAGANNATH

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge. Bhir in Criminal Revision Application No. 54 of 1970 before him. It arises this way.

(2.) THE petitioner before the learned Sessions Judge had obtained an order for maintenance under Section 488 Criminal Procedure Code against her husband. When the husband remained in arrears amounting to Rs. 690/ - she applied for executing the order for the recovery of the amount of arrears. In that application, her husband alleged in his reply that the petitioner had committed acts of adultery and had given birth also to a child. When the application of the petitioner came up for hearing before the learned Magistrate, the petitioner and her Advocate remained absent and the learned Magistrate passed the following order : - "In view of the order passed on Exs. 7 and 8, the applicant is directed to remain present before L. M. O. Bhir on 22.12.1970 on payment of Rs. 10/ - towards her T. A and D. A. L. M. O. be informed accordingly." Being aggrieved by this order, the petitioner went in revision to the Sessions Court. The learned Sessions Judge allowed the revision application recommending to this Court that the order passed by the learned Magistrate should be set aside. According to the learned Sessions Judge, compelling the petitioner to submit to medical examination in order to find out whether she has committed any act of adultery is testimonial compulsion, and secondly he has referred to some passage from Modi's Medical Jurisprudence, where the learned author has observed that the court has no power to compel any woman to submit the private parts of her person to the examination of a Medical practitioner, male or female. Now, it is needless to say that there is no question of testimonial compulsion in this case for the simple reason that the petitioner is not an accused person. She had obtained an order for maintenance under Section 488, Criminal Procedure Code and she went to the Court for putting that order in execution when her husband remained in arrears.

(3.) IT appears that the learned Magistrate by passing the order has compelled the petitioner to remain present before the Medical Officer and submit to medical examination. Now, it is no doubt true that in order to find out whether the petitioner has committed any act of adultery after the order for maintenance was passed in her favour, her medical examination would be one of the pieces of evidence. But the learned Magistrate, while passing this order, has not taken into account the willingness or otherwise on the part of the petitioner. Surely, if the petitioner is willing to submit herself to medical examination and gives her consent, there need be no objection to such examination being made by a Medical Officer. Unfortunately however the learned Magistrate it appears, without ascertaining whether the petitioner is willing or not and without obtaining her consent has passed this order which compels her to submit herself to medical examination. Such an order, I think, in the absence of any valid law providing for it contravenes the fundamental right guaranteed by Article 21 of the Constitution of India.