New Delhi :A couple got married in 2013 in Chennai and later moved to the United Kingdom, where they stayed together happily for a period of 7 and half years. However, fissures developed in their relationship and they separated in April 2021. The wife broke all communication channels with the husband. The couple’s bitter fight landed in court: husband sought restitution of conjugal rights, however wife sought divorce claiming her husband was impotent. The Supreme Court, earlier this week, allowed a plea by the husband seeking to undergo a medical test to determine his potentiality.
A bench comprising justices Vikram Nath and Prashant Kumar Mishra said: “we allow the present appeals in part maintaining the order passed by the trial court dated June 27, 2023 insofar as it directs the appellant/husband to take the medical test to determine his potentiality”.
“Let the test be conducted in the manner indicated by the trial court within a period of four weeks from today and the report be submitted within two weeks thereafter”, said the bench.
The court after returning from the UK stayed together in a residential property belonging to the wife’s father. However, disputes cropped, which fractured the couple's relationship.
In 2021, the husband moved an application under Section 9 of the Hindu Marriage Act, 1955 before the additional principal family court at Chennai, seeking restitution of conjugal rights. However, the wife preferred a plea for grant of decree of divorce under Section 13(1) (ia) of the Act, on the ground that the marriage between the parties has not been consummated because of the husband’s impotence.
The husband moved an application before the trial court under Section 45 of the Indian Evidence Act read with Section 151 of the Code of Civil Procedure, for subjecting himself to potential test and at the same time referring the wife for fertility test and psychological/mental health test for both the parties.
The trial court allowed the interim applications on the condition that a competent medical board shall be constituted by the dean, Rajiv Gandhi Government General Hospital, Chennai, to conduct the subject tests for both the parties. It added that the report of the medical board be sent to the court through the advocate commissioner in a sealed cover and also directed that both the parties not to reveal the result of the tests to any third party and maintain complete secrecy. The wife moved the high court against the trial court order by way of two separate revisions which were allowed by the high court. The husband moved the apex court against the high court order.
In the apex court, husband’s counsel submitted that when he is willing to undergo a potentiality test, there is no reason why the high court should set aside the entire trial court order. The counsel for the wife submitted that when she is not willing to undergo any test be it fertility test or mental health check-up, she cannot be compelled to undergo such tests. “While allowing the revision petitions preferred by the respondent/wife the high court has not assigned any cogent reason as to why the appellant/husband cannot be sent for potentiality test”, said the apex court, in its judgment delivered on April 5.
The apex court said instead of dwelling on the contentions of the parties on the merits of the interim applications decided by the trial court, the high court focused on the conduct of the parties which was not at all germane for deciding the issue as to the validity of the trial court order.
“Considering the factual situation of the present case, we are satisfied that when the appellant/husband is willing to undergo potentiality test, the high court should have upheld the order of the trial court to that extent”, said the apex court, modifying the high court order.
