Punjab-Haryana High Court
Surjit Singh Thind vs Kanwaljit Kaur on 25 April, 2003
Equivalent citations: AIR 2003 P H 353
Author: M Kumar
Bench: M Kumar
ORDER M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') is
directed against the order dated 22-2-2003 passed by the learned Additional District Judge,
Jalandhar dismissing the application of the husband-petitioner in which prayer was made for
getting the wife-respondent medically examined in order to prove her virginity,
2. The wife-respondent has filed a petition before the Additional District Judge under Sections 11
and 12 of the Hindu Marriage Act, 1955 for a decree of nullity of marriage, inter alia, on the ground
that the marriage has never been consummated. The husband-petitioner has taken the defence that
the marriage has been consummated and he is not impotent. In order to prove that the
wile-respondent is not virgin, the husband-petitioner filed an application for her medical
examination which has been declined.
3. Mr. G. P. S. Bal, learned counsel for the husband-petitioner has vehemently argued that refusal, of
medical examination by the wife-respondent is a material fact and the Court should not have
dismissed the application filed by the husband-petitioner. According to the learned counsel, the
medical examination of the wife-respondent would go a long way to prove the fact whether the
marriage is consummated or not. In support of his submission, the learned counsel has placed
reliance on paragraph 74 of a judgment of the Supreme Court in the case of Sharda v. Dharmpal
(2003) 3 JT (SC) 399 : (2003 AIR SCW 1950).
4. After hearing the learned counsel, I do not feel persuaded to take a view that the wife-respondent
shall be subjected to medical examination to prove her virginity because such a medical examination
even if it does not prove her virginity would not necessarily lead to the conclusion that the marriage
with the husband-petitioner has been consummated. It is trite to state that virginity is not the only
proof of non-consummation of marriage. The incapacity of the husband in any form, physical or
mental, may also be the factor for non-consummation of marriage, Allowing the medical
examination of a woman for her virginity would certainly violate her right of privacy and personal
liberty enshrined under Article 21 of the Constitution. Such an order would amount to a roving
enquiry against a female who are vulnerable even otherwise. In Sharda's case (2003 AIR SCW 1950)
(supra), their Lordships of the Supreme Court has observed that no Court shall order a roving
enquiry and there has to be sufficient material before the Court to enable it to exercise such a
discretion. The observations of their Lordships read as under :--
"The matter may be considered from another angle. In all such matrimonial cases where divorce is
sought, say on the ground of impotency, schizophrenia... etc. normally without there being medical
examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his
spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to
substantiate such allegation, the petitioner would always insist on medical examination. If
respondent avoids such medical examination on the ground that it violates his/her right to privacy
or for a matter, right to personal liberty as enshrined under Article 21 of the Constitution of India,
then it may in most of such cases become impossible to arrive at a conclusion. It, may render the
very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy
specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation
of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as
absolute right. What is emphasized is that some limitations on this right have to be imposed and
particularly where two competing interests clash. In masters of aforesaid nature where the
Legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the
right of that spouse which comes in conflict with the so-called right to privacy of the respondent.
Thus, the Court has to reconcile these competing interests by balancing the interests involved.
If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may
otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate
order, the question of such action being violative of Article 21 of the Constitution of India would not
arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the
right of a person to defend himself must be adequately protected.
It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient
materials before it to enable it to exercise its discretion. Exercise of such discretion would be
subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of
Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at
the hands of a Court is not expected. The Court must arrive at a finding that the applicant has
established a strong prima facie case before passing such an order."
5. After the aforequoted discussion, their Lordships proceeded to lay down three principles, namely,
(1) a matrimonial Court has the power to order a person to undergo medical test ; (2) passing of
such an order by the Court would not be in violation of the right to personal liberty under Article 21
of the Constitution; and (3) 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.
6. If the aforementioned principles are applied to the facts of the instant case, then it would be
obvious that no legal infirmity could be found in the impugned order. The question of virginity of
the wife-respondent is not in issue, and the virginity test cannot constitute the sole basis to prove
the consummation of marriage. Allowing such a medical examination of the wife-respondent would
be holding a roving enquiry which is not permissible as observed by the Supreme Court. In any case,
the exercise of discretion by the learned trial Court is not vitiated as the same is based on relevant
considerations and does not suffer from any jurisdictional error warranting interference under
Section 115 of the Code. Therefore, the instant petition is without merit and is thus liable to be
dismissed.
7. For the reasons stated above, this petition fails and the same is dismissed.
