G VENKATANARAYANA Vs. KARUPATI LAXMI DEVI

JUDGEMENT

(1.) This revision petition is against the order appointing a Commissioner-Doctor preferably Civil Surgeon rank and M.D. for scientific investigation of the petitioner in the main O.P. to know whether he is impotent or not and whether he is able to consummate the marriage. O.P.93/1979 was filed by the husband for restitution of conjugal rights the contention of the wife is that the husband is impotent and during the pendency of the original petition the wife filed an interlocutory application for the appointment of a Commissioner. In the counter-affidavit the allegation of impotency is denied and it is stated that the question of examination by competent Doctor does not arise. The Court below held that if the respondent is not suffering from any defect no harm would be caused to him if he is sent for medical examination and in this view the application is allowed.

(2.) In Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 459 a suit by husband under the Indian Divorce Act to declare the marriage void on two grounds namely the wife was impotent and the consent was obtained by fraud. It is also alleged that the wife was suffering from incurable syphilis. After reference to the evidence it was concluded that full investigation of the case was not done and the case was remanded for trial. In the course of giving directions for the investigation of fraud and consideration of impotency the Division Bench Consisting of Mookerjee, A.C.J. and Chaudhuri, held as follows: "We may add that it is necessary that there should be a proper medical examination of the person of the respondent."

(3.) Referring to the power of the Court to order physical examination it is held as follows: