• Bombay HC: Man can seek wife’s test to show they never had sex

    September 10, 2016

    The Bombay HC in its recent order directed a wife to be medically examined to enable the husband to prove his claim of non-consummation of marriage.

    The Court had upheld an order passed this July by the Mumbai family court in a divorce petition filed in 2011 on grounds of non-consummation.

    The High Court had recently rejected a challenge by a woman against an order passed by the family court which had directed her to "undergo a physical and psychological examination medical examination to be conducted by the medical board of Sir J J Hospital, Mumbai".

    The family court judge had called for such an examination on a plea made by the husband in July after she deposed during the divorce trial that she had consummated the marriage with him in 2011 multiple times immediately after their marriage. His plea for divorce, filed five years ago, was on the grounds that she had not, and was "incapable of".

    The family court had directed the medical board to "report whether she is impotent (sic) as alleged".

    Aggrieved at the order, the wife moved the HC and her lawyer argued that the husband had made his plea, impermissibly, at a belated stage, and that the trial was almost over and only arguments remained to be heard. Besides, he submitted a medical certificate by a private doctor who she had visited. The certificate was adequate, the wife argued. Her lawyer pointed to a Supreme Court ruling which said family courts cannot order "roving enquiries" without specific grounds being made out by the other side.

    The HC accepted the husband's counsel submission that the plea was not belated as it was made within three months of the wife's deposition. It noted that "to prove non-consummation of marriage, medical examination was required". It also noted that the wife had in her cross-examination before the family court said she was "ready to undergo any kind of physical examination".

    The Council further argued that the family court has powers to direct a party to undergo a medical test and such an order is no violation of personal liberty under right to life. If, despite the order, the husband or wife, against whom such order is made, refuses to submit to a test, the court is entitled to draw an adverse inference, the SC had held. The HC thus found no merit in the wife's plea.

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