AMOL CHAVHAN Vs. JYOTI CHAVHAN

JUDGEMENT

(1.) 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 submits 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 the 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 A.P. 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 para 4 and 5 the Mysore High Court opined that under Section 55 C.P.C. the Court does not have any inherent power to compel a person to undergo medical examination. Para 4 and 5 are reproduced as under:-

(3.) I have heard the counsel for the petitioner at length and perused the record.