Full Judgment Text
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2024 INSC 274
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s)._______ OF 2024
(Arising out of SLP(C) Nos. 4834-4835 of 2024)
DEEP MUKERJEE … APPELLANT
VERSUS
SREYASHI BANERJEE ... RESPONDENT
J U D G M E N T
PRASHANT KUMAR MISHRA, J.
Leave granted.
2. Challenge in these appeals is to the common order dated
28.11.2023 passed by the High Court in Civil Revision Petition
Nos. 2844 and 2848 of 2023 allowing the revisions while
setting aside the order dated 27.06.2023 passed by the Trial
Court in I.A. Nos. 8 & 9 of 2023 preferred by the
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2024.04.06
11:19:40 IST
Reason:
appellant/husband in O.P. No. 2866 of 2021.
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3. The parties were married on 23.07.2013 at Chennai and
thereafter they agreed to move to the United Kingdom where
they stayed together happily 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.
4. The appellant/husband preferred application under Section
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9 of the Hindu Marriage Act, 1955 before the Additional
Principal Family Court at Chennai, seeking restitution of
conjugal rights being OP No. 2441 of 2021 whereas the
respondent/wife subsequently preferred OP No. 2866 of 2021
for grant of decree of divorce under Section 13(1) (ia) of the
Act, 1955 on the ground that the marriage between the parties
has not consummated because of the appellant/husband’s
impotency.
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‘Act,1955’
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5. In the above factual background, the appellant/husband
moved I.A. Nos. 8 & 9 of 2023 under Section 45 of the Indian
Evidence Act read with Section 151 of the Code of Civil
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Procedure, 1908 for subjecting the appellant/husband to
undergo potential test and at the same time referring the
respondent/wife for fertility test and psychological/mental
health test for both the parties. Vide order dated 27.06.2023,
the Trial Court allowed the above interim applications on the
condition that a competent medical board shall be constituted
by the Dean, Rajiv Gandhi Government General Hospital,
Chennai to conduct the subject tests for both the parties as
prayed for in the interim applications 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.
6. The Trial Court’s order dated 27.06.2023 was challenged
by the respondent/wife before the High Court by way of two
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‘CPC’
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separate revisions which have been allowed by the High Court
under the impugned order.
7. In the course of arguments in this Court, learned counsel
for the appellant/husband submitted that when the
appellant/husband is willing to undergo potentiality test, there
is no reason why the High Court should set aside the entire
order. The learned counsel for the appellant would refer to the
decision of this Court in the case of “Sharda vs. Dharmpal”
(2003) 4 SCC 493. Per contra, the learned counsel for the
respondent/wife would submit that when the respondent/wife
is not willing to undergo any test be it fertility test or mental
health check-up, she cannot be compelled to undergo such
tests.
8. While allowing the revision petitions preferred by the
respondent/wife the High Court has not assigned any cogent
reason as to why the appellant/husband cannot be sent for
potentiality test. Instead of dwelling on the contentions of the
parties qua the merits of the interim applications decided by
the Trial Court, the High Court focused on the conduct of the
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parties which was not at all germane for deciding the issue as
to the validity of the order passed by the Trial court.
9. Considering the fact situation of the present case, we are
satisfied that when the appellant/husband is willing to undergo
potentiality test, the High Court should have upheld the order
of the Trial Court to that extent. Accordingly, we allow the
present appeals in part maintaining the order passed by the
Trial Court dated 27.06.2023 insofar as it directs the
appellant/husband to take the medical test to determine his
potentiality. Let the test 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.
Impugned order passed by the High Court stands modified to
the above extent only.
………………………………………J.
(VIKRAM NATH)
………………………………………J.
(PRASHANT KUMAR MISHRA)
APRIL 5, 2024
NEW DELHI.