Mousmi Sharma @APPELLANT@Hash Principal Secretary Home And another

In the instant petition, the petitioner seeks a mandamus with a direction to the Principal Government Medical College, Jammu to constitute a Medical Board to conduct her virginity test. It is averred that the petitioner had got married in the year 2006 and that even after the expiry of more than 12 years the petitioner's marriage was not consummated.

Besides this, it is also averred that the petitioner was subjected to the worst type of mental, physical and emotional cruelty at the hands of her husband. It is further averred in the petition that the petitioner intends to initiate legal action against her husband, but requires authentic proof to prove her case before the Court of law. It is in those circumstances, prayed for a direction to be issued as stated hereinabove.

Heard learned counsel for the petitioner.

The petitioner may have a right to file a civil action for seeking a decree, annulling her marriage on the ground that the same was not consummated owing to the impotence of the husband, yet in my opinion, that stage has not arrived yet. No such action has been initiated by the petitioner in a Civil Court. The petitioner is only seeking a direction with a view to create evidence, which might ultimately be used by her in the proceedings, which she wishes to initiate. What is important to note here is the fact that the petitioner has not arrayed her husband as a party respondent.

In my opinion, a direction for a medical examination, if at all, can only be made at the appropriate stage in appropriate proceedings, in this case, the civil proceedings, which might ultimately be initiated in terms of Section 12 of the Hindu Marriage Act. Any such direction issued at this stage will amount to ordering a roving enquiry for purposes of collection of evidence to facilitate one of the parties to the dispute.

Needless to say that a Matrimonial Court does have the power to order a person to undergo a medical test, as has been held by the Apex Court in case titled "Sharda Vs Dharmpal" reported in (2003)4 SCC 493. What has been stated by the Apex Court in paragraph 81 is reproduced hereunder for facility of reference:-

"81. To sum up, our conclusions are -

A matrimonial court has the power to order a person to undergo medical test.

Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If, despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him. "

The issue at hand required to be handled with sensitivity. An order directing the petitioner to undergo a medical examination, even in a case where the petitioner is willing to undergo such a test carries with it some amount of trauma. This situation can best be avoided, if such an effort is made at an appropriate stage before the Civil Court. For all we know, when the petition for annulment is filed in terms of Section 12 of the Hindu Marriage Act, with the allegations, as have been reproduced in the present petition, the husband of the petitioner may choose not to contest the petition at all. In such a case, the entire effort of subjecting the petitioner to a medical examination would be non-productive and unnecessary.

On the other hand, the husband of the petitioner may oppose the conduct of the Medical Board and raised defences, which would be available to him under law. Any direction if were to be passed by this Court at this stage, which is even otherwise premature could affect the defences, which the husband would otherwise be entitled to take in law.

Having considered the matter in its entirety, I am of the opinion that the relief sought in this petition is premature and can be claimed before the appropriate forum in terms of Sharda's case supra.

It is, however, clarified that as and when any such petition is filed by the petitioner before the Court below, she would be at liberty to make any such prayer, which would be considered on its own merits, after affording an adequate opportunity of being heard to the other side.

Disposed of accordingly.