CASE TITLE- Deep Mukerjee Vs Sreyashi Banerjee
CASE NUMBER- Civil Appeal No(S) Of 2024 (Arising Out of Slp(C) Nos. 4834-4835 Of 2024)
DATED ON- 05.04.2024
QUORUM- Hon’ble Justice Prashant Kumar Mishra
FACTS OF THE CASE
The parties were married in the year 2013 at Chennai and thereafter they to move to the United Kingdom where they stayed together for a period of 7½ years. After they returned, they stayed together in a residential property belonging to the respondent/wife’s father. However, upon disputes being cropped, they have separated in April, 2021 and since then, it is alleged by the appellant/husband that the respondent/wife neither joined his company nor responded to any communication and/or messages of the appellant/husband. The husband preferred application before the Additional Principal Family Court at Chennai, seeking restitution of conjugal rights, whereas the wife subsequently preferred for grant of decree of divorce on the ground that the marriage between the parties has not consummated because of the appellant/husband’s impotency. The husband moved application for subjecting the husband to undergo 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 above interim applications on the condition that a competent medical board shall be constituted by the Dean and the report of the medical board be sent to the Court through the advocate Commissioner in a sealed cover. Both the parties were directed not to reveal the result of the tests to any third party and maintain complete secrecy. The Trial Court’s order was challenged by the wife before the High Court, which have been allowed by the High Court under the impugned order.
ISSUE RAISED
No such Issue was raised before the court of law. However, the court decided on whether to allow the potentiality test demanded by the respondent/husband or not?
LEGAL PROVISIONS
- Section 9 of The Hindu Marriage Act, 1955
- Section 13(1) (ia) of The Hindu Marriage Act, 1955
- Section 45 of the Indian Evidence Act
- Section 151 of the Code of Civil Procedure
CONTENTIONS OF THE APPELLANT
In the course of arguments in this Court, learned counsel for the appellant/husband submitted that when the appellant is willing to undergo potentiality test, there is no reason why the High Court should set aside the entire order.
CONTENTIONS OF THE RESPONDENT
The learned counsel for the respondent/wife submitted that when the respondent is not willing to undergo any test be it fertility test or mental health check-up, she cannot be compelled to undergo such tests.
COURT’S ANALYSIS AND JUDGEMENT
The court analyzed that, while allowing the revision petitions preferred by the respondent, the High Court has not assigned any cogent reason as to why the appellant cannot be sent for potentiality test. The High Court only focused on the conduct of the parties which was not at all germane for deciding the issue as to the validity of the order passed by the Trial court. Considering the fact situation of the present case, the court got satisfied that when the appellant is willing to undergo potentiality test, the High Court should have upheld the order of the Trial Court to that extent. Accordingly, present appeals in part maintaining the order passed by the Trial Court insofar as it directs the appellant to take the medical test to determine his potentiality. The court ordered the test to 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.
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Judgement Reviewed By- Shreyasi Ghatak
