The Supreme Court of India reversed the Madras High Court’s decision and allowed a husband’s potency test in a matrimonial matter.
The Division Bench of Justice Vikram Nath and Justice Prashant Kumar Mishra held that since the husband was willing to undergo a potency test, the High Court should not have interfered with the Trial Court’s order to the extent of the husband.
Brief Facts
The couple in the instant matter got married on 23.07.2013 at Chennai and moved to the United Kingdom, where they happily stayed together for 7.5 years. When they returned and stayed at the residential property belonging to the wife’s father, disputes cropped leading to their separation in April 2021. It was alleged by the husband that his wife neither joined his company nor responded to any communication or messages of her husband.
The husband preferred an application under Section 9 of the Hindu Marriage Act, 1955 to seek restitution of conjugal rights. In turn, his wife sought for divorce under Section 13(1)(ia) of HMA 1955 on the ground that their marriage was not consummated due to husband’s impotence. Accordingly, the husband moved an interim application under Section 45 of the Indian Evidence Act read with Section 151 of the Code of Civil Procedure, 1908, for subjecting himself to undergo potency test and also referring the wife for fertility test and psychological/mental health test for both of them. While the Trial Court allowed the interim applications on the condition of constitution of a competent medical board by the Dean, Rajiv Gandhi Government General Hospital, Chennai to conduct the required tests for both the parties and send the report of the medical board to the Court through advocate Commissioner in a sealed cover, the High Court on 28.11.2023 allowed revisions against the same and set aside order passed by the Trial Court on 27.06.2023.
Contentions of the Appellant Husband
It was argued on behalf of the husband that when he himself was willing to undergo a potency test, there was no reason for the High Court to set aside the entire order. The decision in case of Sharda Devi vs Dharmpal, 2022 Latest Caselaw 13151 Raj was referred in this regard.
Contentions of the Respondent Wife
It was contended on behalf of the wife that she could not be compelled to undergo a fertility test or mental health check-up against her will.
Observations of the Court
The Court signaled that the High Court had not assigned any cogent reason on why the husband could not be sent for potency test, but focused upon the conduct of parties, and expressed that “it was not at all germane for deciding the issue as to the validity of the order passed by the Trial Court.”
Considering the facts of the instant matter, the Court was satisfied that the husband was willing to undergo a potentiality test, and opined that the High Court should have upheld the Trial Court’s order to that extent.
Decision of the Court
Therefore, The Court modified the High Court’s order to the extent of husband and allowed the instant appeals in part upholding the Trial Court’s order directing the husband to undertake a medical test for determining his potence. The Court ordered the said test to be conducted within 4 weeks and report to be submitted within 2 weeks.
Case Title: Deep Mukerjee vs Sreyashi Banerjee, 2024 Latest Caselaw 212 SC
Case No.: Civil Appeal arising out of SLP No.s 4834-4835 of 2024
Citation: 2024 Latest Caselaw 212 SC
Coram: Division Bench of Hon’ble Justice Vikram Nath and Hon’ble Justice Prashant Kumar Mishra
Read Judgement @LatestLaws.com:
Picture Source :
