Ghulam Mohammad Khan vs Mst. Hasina

G.A. Kuchhai, J.—In this revision petition, the petitioner/defendant challenges an order dated 24-5-86 whereby in a suit for dissolution of

marriage, the petitioner has been directed to submit for medical examination before Medical Board.

The relevant facts of the case run : that the respondent-wife brought a suit for dissolution of marriage against the petitioner-her husband before

the trial Court and the preliminary issue regarding potency of the petitioner was framed by the Court below on 9-5-1985 to the effect whether the

petitioner/husband is a potent and on the same date the petitioner was directed to get himself examined by the Medical Board. The onus of proving

issue was cast on the plaintiff.

The petitioner appears to have been medically examined and a certificate issued by the Board. At the trial, the trial Court summoned the

Medical Superintendent for examination whose presence could not be procured and another order impugned dated 24-5-1986 has been passed

by the trial Court directing the petitioner, to get himself again medically examined by a Medical Board with additional reason that earlier certificate

is not specific and it is this order that the petitioner challenges before this Court.

No one appeared on the hearing date despite Mr. M. Y. Parray having filed his power for the respondent.

I have heard learned counsel for the petitioner. Mr. Trisai, argued that the Court below unnecessarily has directed second time the petitioner to

get himself medically examined in the face of already one conducted by the Medical Board of the petitioner for which a certificate was also issued.

The direction passed by the Court below was, argued, without jurisdiction.

I have perused the order together with the proceedings conducted. The order impugned suffers on many grounds. Firstly, the onus of proving

impatency of the petitioner/defendant, was on the plaintiff/respondent but the trial Court has shifted the onus to the petitioner in a negative form to

prove his potency by submitting to the Medical examination. The proof, if any, no doubt, was on the plaintiff/respondent who has alleged the

impotency of the petitioner. The trial Court without looking to this aspect of the case while framing the issue on 9-5-1985 had directed the

petitioner to get himself medically examined which action was complied by the petitioner and his medical examination conducted for which

certificate appears to have been issued. The trial Court then summoned the Medical Superintendent to depose regarding certificate while the

presence of Medical Superintendent was not procured, the trial Court abruptly passed the order impugned giving fresh direction to the petitioner to

appear before the Board for fresh examination. This second direction by the trial Court, prima facie is without jurisdiction, for the fact the trial

Court had no occasion to go into the merit of the certificate issued earlier by the Board on the same subject.

The basic question involved in this case, is whether a Court could compel a party to submit to medical examination in any proceeding without

his/her consent. There is no provision in C.P.C. or Evidence Act or any other special law which will give power to a Court to order a party to get

himself medically examined. Thus, if any, such order is passed, it suffers for want of jurisdiction, as no Court can afford to tamper the privacy or

liberty of a person in respect of his/her modesty unless consented. No doubt, Court is not helpless in rare situation where appropriate provision is

not available, Section 151, C.P.C. at once comes into play for ends of justice. The question again arises, whether a Court can exercise its inherent

jurisdiction to compel a party to the proceeding, to submit to medical examination ignoring privacy of a person and liberty to give benefit to the

other party as in the present proceedings. In my opinion, in the absence of express provision under any law, the Court cannot exercise power u/s

151, C.P.C. to order any party in proceeding to submit for medical examination against his/her will. I am, in my view supported by a decision of

Madras High Court, reported in AIR 1981 Mad 349 in case 'N. Venkatachalapathy v. Saroja'. To the same effect is AIR 1972 Mys 157 in case

'Ravamma v. Shanthappa' wherein it has been held :

There is no provision under the Hindu Marriage Act or the Rules framed thereunder or in the CPC or in the Indian Evidence Act or any other law

which would show any power in the Court to compel any party to undergo medical examination.

A medical examination for ascertaining whether a person is insane or impotent are all cases in which unless by the law of the land a person can be

compelled to undergo medical examination, an order directing a person to undergo medical examination would be clearly illegal and without

jurisdiction.

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In the case of RM. PM. Ranganathan Chettiar Vs. Chinna Lakshmi Achi, , it has been held that it is not open to the Court u/s 151 of the C.P.C.

to order a medical examination of a party against the consent of such party. To pass such an order is tantamount to treating a human being as a

material object, which no Court should do under its inherent power.

The rule laid in the citations referred, applies in toto to the facts of the case in hand as the potency of the petitioner being in issue, the trial Court

has no jurisdiction nor power under law, even u/s 151, C.P.C. to order the petitioner to submit to medical examination. The learned trial Court has

committed an error by ordering the petitioner to submit to the medical examination. Though the petitioner has once submitted to such examination

and a certificate was issued without proper appreciation of the certificate issued the trial Court inadvertently and for want of legal knowledge

issued a fresh direction to the petitioner which is without jurisdiction and cannot be sustained under law.

For the reasons given, the order dated 24-5-1986 passed by Munsiff, Chadoora (Mr. Ahmad Ullah Malik) is set aside and the file is sent back

to the trial Court to proceed afresh from the date the order set aside, was passed. Since the petitioner has been examined by the Board, the trial

Court is at liberty to act upon the medical evidence available on record and decide the issue of potency of the petitioner on the evidence to be led

by the party on whom the onus has been laid.

With these observations, the revision petition is accepted and order impugned dated 24-5-1986 of Munsiff, Chadoora, is set aside.