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The Hindu Marriage Act, 1955
Article 21 in The Constitution Of India 1949

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Andhra High Court
G.Prayag Raj vs Smt. Sreevani @ Vani on 18 October, 2012
       

  

  

 
 
 THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY              

CIVIL REVISION PETITION No.3117 of 2012    

18-10-2012 

G.Prayag Raj 

Smt. Sreevani @ Vani 

Counsel for Petitioner:  Sri A.H.Chakravarthy

Counsel for Respondent: Sri Rakesh Sanghi 

<GIST: 

>HEAD NOTE:    

?CITATIONS:  

AIR 2003 SC 3450  

ORDER:  

This Civil Revision Petition arises out of order dated 11.05.2012 in I.A.No.214 of 2012 in O.P.No.806 of 2010 on the file of the learned Judge, Additional Family Court, Hyderabad.

The petitioner has filed the above-mentioned O.P. for restitution of conjugal rights against the respondent. Initially, the respondent has taken the stand that as the petitioner suffers from impotency, she will join him after its cure, in case the same is curable. However, later she filed a counter claim for grant of decree for restitution of conjugal rights in case the petitioner withdraws the O.P. But, subsequently she has got the counter claim amended by claiming divorce on the ground of impotency. Several interlocutory applications were filed by either party in the O.P. For the present, I.A.No.528 of 2010, I.A.No.29 of 2011 and I.A.No.222 of 2011 are relevant. The petitioner filed I.A.No.29 of 2011 for subjecting the respondent to medical test to ascertain the disease with which she is suffering. The respondent also filed I.A.No.528 of 2010 for a similar relief viz., to subject the petitioner to undergo comprehensive tests before a panel of expert doctors of Osmania Medical College or Gandhi Medical College or NIMS for determining whether the petitioner is suffering from curable or incurable impotency. Both the I.As were disposed of by the lower Court by its order dated 27.01.2011, wherein both the parties were directed to appear before the RMO of the Gandhi Hospital, Secunderabad, that the respondent shall be examined by two lady Medical Officers and that the petitioner shall be examined by two male Medical Officers.

The petitioner has filed a potency certificate dated 22.03.2011 issued by Dr. G. Surender Reddy, Professor and Head of Forensic Medicine, Gandhi Medical College, Musheerabad, before the Court below. The respondent has filed I.A.No.222 of 2011 for a direction to the petitioner to attend Andromeda Andrology Centre or Dr. K.S. Memorial Clinic for submitting himself to T3, T4 and TSH Test Testosterone Level test and Rigiscan test for facilitating his medical examination for potency.

This application was resisted by the petitioner by pleading that as a potency certificate was already issued by a competent doctor after his medical examination, subjecting him to further tests amounts to harassment. The lower Court accepted the said plea of the petitioner and dismissed I.A.No.222 of 2011 by order dated 07.05.2011.

Later, the respondent filed I.A.No.214 of 2012 for a similar relief as was claimed by her in I.A.No.222 of 2011. In her application, the respondent stated that the petitioner was not examined by the doctors of Gandhi Medical College, that the said doctors submitted a report, dated 08.03.2011, stating that the said college does not have the equipment to carry out the above-mentioned tests and that the petitioner has obtained the certificate by playing fraud. Along with the application, the respondent filed order dated 07.02.2012 (wrongly mentioned in the order of the lower Court as 07.02.2005) issued by the Andhra Pradesh Medical Council, Hyderabad, in Case No.27/2011 filed by the respondent challenging the potency certificate dated 22.03.2011 issued by Dr. G.Surender Reddy in favour of the petitioner. From the said order, the lower Court has noticed that the A.P.Medical Council constituted a committee, which observed that the certificate issued by Dr. G.Surender Reddy is not valid and that a potency certificate can be issued only by a Board of doctors consisting of Urologist, Psychiatrist, Endocrinologist or Physician. The lower Court has, therefore, reconsidered its earlier view taken in I.A.No.222 of 2011 and allowed I.A.No.214 of 2012 by directing the petitioner to be subjected to the above- mentioned various tests.

Mr. A.H. Chakravarthy, learned counsel for the petitioner, strenuously submitted that having already rejected the respondent's request for subjecting the petitioner to another round of tests, the lower Court has committed a serious illegality in allowing subsequent application of the respondent for the same relief.

Mr. Rakesh Sanghi, learned counsel for the respondent, while opposing the above submission of the learned counsel for the petitioner, submitted that the petitioner played fraud by surreptitiously approaching Dr. G.Surender Reddy instead of getting himself examined through the RMO as directed by the lower Court and that as the A.P. Medical Council itself has found the potency certificate issued by Dr. G.Surender Reddy as fake and not valid, the lower Court has rightly allowed the respondent's subsequent application. He placed reliance on the judgment in Sharada vs. Dharam Paul1.

I have carefully considered the submissions of the learned counsel for the parties with reference to the record. It is no doubt true that on the basis of the certificate issued by Dr. G. Surender Reddy, the lower Court has earlier dismissed I.A.No.222 of 2011 filed by the respondent for subjecting the petitioner for further medical tests. However, it is not in dispute that subsequently the A.P. Medical Council has declared the potency certificate issued in favour of the petitioner as invalid. This subsequent event has brought about a radical change in the circumstances after the dismissal of I.A.No.222 of 2011. The lower Court has taken note of these changed circumstances in allowing I.A.No.214 of 2012 filed by the respondent.

Impotency is one of the grounds for divorce under the provisions of the Hindu Marriage Act, 1955. In Sharada (supra), the Supreme Court held that without proper medical examination, it would be difficult to arrive at a conclusion as to whether the husband is suffering from impotency or not and that if the husband avoids such medical examination on the ground that it violates his right of privacy or personal liberty as enshrined under Article 21 of the Constitution of India, it would become impossible to arrive at the definite conclusion on the impotency or otherwise of the husband. The Supreme Court further held that avoidance of medical examination to ascertain the impotency of the husband may render the very ground on which the divorce is permissible nugatory and that where the legislature has conferred a right upon the spouse to seek divorce on the ground of impotency, it would be right of that spouse which comes in conflict with the so called right to privacy of the husband and that the Court has to reconcile these competing interests by balancing the same.

As noted herein above, the very potency certificate issued by Dr. Surender Reddy has come under serious cloud. This event has occurred after the dismissal of I.A.No.222 of 2011. This being a very relevant circumstance, it has become inevitable to subject the petitioner again for further proper medical examination to ascertain the truth or otherwise of the allegation of impotency. If the request of the respondent is rejected, that may render her right to seek divorce on the ground of impotency otiose as held by the Supreme Court in the aforementioned judgment. In the light of these facts, I am of the opinion that the lower Court has not committed any error in reconsidering his earlier view in view of the changed circumstances by directing the petitioner for being subjected to the potency test by a team of experts.

Hence, the Civil Revision Petition is dismissed.

As a sequel, CRPMP.No.4129 of 2012 filed for interim relief is dismissed as infructuous.

_________________________ C.V.NAGARJUNA REDDY,J 18.10.2012