Surinder Singh vs Manjit Kaur

A.P. Chowdhari, J.

Through this petition under Section 482 of the Code of Criminal Procedure, the petitioner seeks quashing of order Annexure P16 dated 23rd July, 1990, passed by Judicial Magistrate Ist Class, Amritsar, directing the petitioner as well as the respondent to be medically examined on the basis of an application made by the respondent.

The material facts in which the aforesaid order was passed are, as follows

Surinder Singh petitioner was married to Smt. Manjit Kaur respondent on 20th April, 1986. The respondent filed a petition under Sec. 12 of the Hindu Marriage Act on 14.1.1987 on the ground of alleged impotency of the husband. In reply, the husband denied being impotent. On the contrary, he pleaded that he had a normal married life and as a result of cohabitation the respondent had become pregnant. During the pendency of the proceedings under S. 12 of the Hindu Marriage Act, the husband made an a application for his own medical examination as well as that of the wife. The application was allowed by the learned Additional District Judge by order dated 4.10.1988. By a later order dated 12.10.1988 certain points were specified both for the husband as well as the wife on which findings/opinion of the Medical Board constituted earlier were sought. Both the parties were examined by separate Boards on 19.10.1988. The report with regard to the wife is Annexure P6 and that regarding the husband is Annexure P7. Dr. Gian Kaur and Dr. S.P. Singh Sohal were examined in order to prove the respective reports.

It appears that the wife instituted a petition under Section 125 of the. Code of Criminal Procedure and during the pendency of the said application she made an application Annexure P14 for the medical examination of the husband on the ground that the earlier report Annexure P7 had been manoeuvred by him and it was not correct and reliable. The application was opposed by the husband. By the impugned order, however, the learned Magistrate allowed the application. The husband seeks quashing of the order as an abuse of the process of the Court.

During the hearing of the petition in this Court, on the request of the wife a reference was made to the Medical Superintendent, P.G.I. to arrange a medical examination of the wife on the following questions vide order dated February by 5, 1991 :

(i) whether she is a virgin ?

(ii) if the answer was in the negative, whether there were any sign of any previous pregnancy and its premature (sic)? The wife was accordingly examined a Board of three doctors and their report has been placed on record.

The contention of learned counsel for the husband is that the order dated 23rd 1990 passed by the learned Magistrate be quashed as there was no Justification for passing the said order in view of the earlier medical examination of the husband. He further contended that the husband having already been medically examined, is not willing to undergo a second examination and lest his refusal to undergo medical examination may be used against him for drawing an adverse inference, it became necessary for him to move this Court by way of the present petition. Learned counsel also referred to the understanding reached in the course of hearing of the petition according to which only the wife was to be further examined either by senior doctors of the P.G.I. or of the All India Institute of Medical Sciences, New Delhi. There was no condition that the husband should also undergo second medical examination.

The contention of the learned counsel for the wife, on the other hand, is that no such understanding was reached and in any case, the Court should be guided in this behalf by the order dated February 5, 1991. Learned counsel also submitted that, in fact, the report of the examination in respect of the husband as also the testimony of Dr. S.P. Singh Sohal dated 1.3.1989 did not show whether the husband was potent or impotent. All that the aforesaid material indicated was that the husband was a male. The real question, namely, of potency remained unanswered and, therefore, it was necessary to have the second medical examination of the husband.

I have given my anxious consideration to the respective submissions of the learned counsel. The question requiring consideration is whether the order dated 23rd July, 1990, passed by the Magistrate deserves to be quashed under Section 482 of the Code. The medical examination undergone by the wife during the pendency of the petition in this Court was in pursuance of her own desire as indicated by the order dated February 5, 1991. If the husband had also agreed to undergo a further medical examination, there was no difficulty in the same having been recorded in the order. The total absence of any reference to the medical examination of the husband in the order dated February 5, 1991, goes a long way to show that the husband did not agree to undergo the medical examination. On the contrary, he disputed the jurisdiction and propriety of the Judicial Magistrate in directing his further medical examination. I am not at all impressed by the contention that the report of the Board and the statement of Dr. S.P. Singh Sohal did not help determine the point in controversy.

The larger question whether the Magistrate has jurisdiction to direct a medical examination of the husband in proceedings under Section 125 of the Code of Criminal Procedure need not be answered. For the purposes of the case in hand it is sufficient to point out that admittedly under orders of the Court and possibly with the consent of the parties their medical examination had been got done. What is the evidentiary value of those reports will undoubtedly be decided by the Court concerned at the appropriate stage according to law. Nothing said in this order is intended to reflect on the evidentiary value to be attached or the inference to be drawn in the facts and circumstances of the case. There was no occasion for the learned Magistrate to have directed a second medical examination. In the facts and circumstances of the case, therefore, the order dated 23.7.1990 is hereby quashed. The parties through their counsel are directed to appear in the trial Court for further proceeding according to law on June 12, 1991.

JUDGMENT accordingly.