Pushpendra Singh Thakur vs Smt. Mamta Thakur

U.C. Maheshwari, J

The applicant/husband has directed this revision u/s 397/401 of Cr.P.C. against the order dated 17.10.2011 passed by Judicial Magistrate First Class Budhni, District Sehore in MJC No. 47/05, whereby, his application filed u/s 45 of the Evidence Act for appropriate direction to carry out the "karyotype" investigation of the respondent through some expert of the medical filed, has been dismissed. The facts giving rise to this revision in short are that the respondent herein filed an application u/s 125 of Cr.P.C. contending that she got married with the applicant in the year 1994 in accordance with the rites and rituals of Hindu community. Subsequent to marriage she has been neglected and refused by the respondent without any sufficient cause and under such compulsion, she is residing separately. In this regard by stating some other averments, the prayer for monthly maintenance is made.

In reply of the respondent by denying the averments of the application in addition, it is stated that the respondent is not a lady as such she is having the character of Hermaphroditism [Ubhaylingata] and in such premises, the alleged marriage being null and void, she could not be treated to be the wife of the applicant and in such premises, is not entitled to get any relief of maintenance as prayed.

In the course of trial, on behalf of the respondent as many as four witnesses namely Mamta Thakur (PW-1) herself, her father Ramesh Thakur (PW-2), Madanlal Yadav (PW-3) and Dr. Sunita Pandey (PW-4) have been examined while, on behalf of applicant herein, as many as six witnesses namely Pushpendra Singh Thakur (NAW-1), applicant himself, Dr.(Smt.) Archana Baser, (NAW-2), Dr. R.K. Sodani (NAW-3), Dr. Ranjana Hawaldar (NAW-4), G.K. Yadav, (NAW-5) and Ajay Garg (NAW-6), have been examined.

After examining the aforesaid witnesses, out of some circumstances made out from the deposition of respondent herself (PW-1) and her witness Dr. Sunita Pandey (PW-4) so also from the deposition of Dr. (Smt) Archana Baser (NAW-3) and Dr. R.K. Sodani (NAW-3), along with Dr. Ranjana Hawaldar (NAW-4), on arising the situation on behalf of the applicant, an application u/s 45 of the Evidence Act for appropriate direction to carry out the karyotype medical test of the respondent for confirming the aforesaid diecease of Hermaphroditism, was filed. On consideration, such application of the applicant has been dismissed by the impugned order. On which, the applicant has come to this Court with this revision.

Shri Ajay Kumar Jain, learned appearing counsel of the applicant after taking me through copy of the impugned application filed u/s 45 of the Evidence Act along with the other papers including the recorded depositions of the abovementioned witnesses and the impugned order, argued that in the available circumstances specially in view of depositions of abovementioned doctors examined by the parties, the aforesaid "karyotype" medical test of the respondent is necessary to adjudicate the present matter. Unless such test is carried out, the impugned case could not be effectively adjudicated between the parties. In continuation, he also said that if, he is not permitted to get examined the respondent from the expert for the aforesaid test then, he would be deprived of his valuable right to prove his defence stated in the reply. In continuation, he said that unless the respondent is directed for such test and such direction is not complied with by her, on this issue adverse inference against the respondent could not be drawn in the matter. So in such premises, the appropriate direction for the alleged test is necessary. He fairly pointed out that besides the present litigation, at the instance of present applicant, an application u/s 12 of the Hindu Marriage Act, declaring the impugned marriage of the applicant and respondent ab-initio void, is also pending as Civil Original Suit No. 01/11 in the Court of Additional District Judge Sohagpur, District Hoshangabad in which till some extent, identical application was filed on behalf of the applicant. The same was opposed by the respondent and on consideration, the same was dismissed vide order dated 28.4.2011 by such Court holding that the respondent cannot be insisted to get her examine from the medical practitioner without her wish. On which, the applicant has challenged such order before this Court through Writ Petition No. 8032/11. By entertaining such petition vide order dated 22.6.2011, the further proceedings of such Civil Suit has been stayed till next date of listing and the same is yet to be listed and heard for it''s adjudication. But simultaneously, he also argued that every case either it is a civil case or criminal case, is always decided on the basis of evidence recorded in the concerning case and not by the evidence recorded in the other case, as such the order/ judgment of the Court should not be influenced by the evidence of the other case and prayed for allowing his application and setting aside the impugned order by admitting and allowing this revision.

Having heard the counsel, keeping in view his arguments I have carefully gone through the papers of the impugned case along with the impugned order placed on the record so also the aforesaid order dated 28.4.2011 passed in Civil Original Suit No. 1/11, along with the order of this Court dated 22.6.2011 passed in writ petition No. 8032/11. After perusing the same, I am of the considered view that this revision at this stage, does not have any material question requiring any interference under the revisional jurisdiction of this Court specially on the question raised by the applicant''s counsel. In this regard the Civil Court has already expressed it''s opinion against the applicant vide order dated 28.4.2011 and such order is still sub-judice in the aforesaid writ petition. It is also apparent fact that in such writ petition, the operation of such order dated 28.4.2011 has not been stayed. Thus, at this juncture, in view of the settled proposition of law that the order passed by the Civil Court, till some extent is binding against the Criminal Court but the order of the Criminal Court is not binding against the Court dealing with the Civil matter of the same dispute between same parties. So, in such premises, the aforesaid interim order of the Civil Court is binding between the parties and, therefore, firstly this revision could not be entertained even for admission on this count.

Apart the above, in view of the law laid down by the apex Court in the matter of Goutam Kujju vs. West Bangal 1993 SC 2295 and also in the matter of Smt. Selvi and Others Vs. State of Karnataka, , the person like respondent the wife of the applicant could not be insisted contrary to her wish to examine herself for any medical investigation as prayed by the applicant''s counsel. In the case at hand, contrary to the fundamental right of the respondent vested under Article 21 of the Constitution of India, she could not be insisted by the trial Court as well as by this Court to get examined herself for the abovementioned test as prayed by the applicant''s and it is apparent from the impugned order that the same has been passed by taking into consideration the aforesaid law of the land laid down by the apex Court, thus on this count also the impugned order does not have any question which could be interfered for any interference under the revisional jurisdiction of this Court.

In view of the aforesaid discussions, I have not found any perversity, infirmity, illegality or anything against the propriety of the law in the order impugned dismissing the applicant''s application u/s 45 of the Evidence Act. Consequently, this revision being devoids of any merits, is hereby dismissed at the stage of motion hearing.

However, it is made clear that any observations made in this order shall not affect the right of the applicant to prosecute petition filed by the applicant u/s 12 of the Hindu Marriage Act or it''s aforesaid writ petition. The same shall be decided by the Court on it''s own merits without influencing from any findings or observations of this order. It is also made clear that subject to decision of said writ petition, on arising the occasion, the applicant shall be at liberty to file the fresh application in this regard. Revision is dismissed at the stage of admission in motion hearing.