SANDIP KUMAR DASGUPTA Vs. DIPANWITA DASGUPTA

JUDGEMENT

(1.) Both these Revisional Applications in C.O. No. 3309 of 2018 and C.O. No. 3310 of 2018 are taken up together for hearing inasmuch as identical question of law and facts are involved therein.

(2.) Heard both the learned counsels for the parties and the materials disclosed in both the Revisional Applications. Both the Revisional Applications arise out of impugned orders passed in MAT Suit No. 736 of 2008 filed by the wife opposite party.

(3.) C.O. No. 3309 of 2018 arises out of order No. 119 dated 19th July, 2018 passed by the learned Additional District & Sessions Judge Chandernagore, Hooghly in MAT Suit No. 736 of 2008 at the instance of the husband. The suit was filed by the wife seeking annulment of marriage by a decree of nullity under Section 25 (i) and alternatively for divorce under Section 27 (1) (d) of the Special Marriage Act, 1954. However, initially the suit was based on cruelty but subsequently by way of amendment the wife also incorporated the ground of nullity under Section 25 (i) of the said Act. From the pleading it appears that the wife claimed that the marriage was void inasmuch as the same was not consummated. In the above background after the amendment was allowed the wife filed an application before the Court below praying potency test of the husband. Such prayer of the wife was allowed by the order impugned. Since the wife opposite party also pleaded in the suit that the marriage was not consummated because of the impotency of the husband and that the same was a void marriage, the husband also filed an application seeking virginity test of the wife. By the order impugned the husband's application seeking virginity test has been rejected by the learned Court below. While rejecting the application the learned trial Court relied on a passage of a renowned author that "Virginity test is not a reliable indicator of a female having actually engaged in sexual intercourse because the tearing of the hymen may have been the result of an involuntarily sexual act" and held that it does not appear to the Court to be a sound proposition of law. Therefore, in my view also the contention raised by the husband that since the wife made an allegation that the marriage was not consummated she should be subjected to virginity test cannot be accepted, particularly, when it is undisputed that the marriage took place on 30th November, 2006. Therefore, I do not find any illegality and/or material irregularity in the impugned order. I do not also find any jurisdictional error on the part of the learned trial Court in rejecting petitioner's application for virginity test.