1 FARAD CONSTITUTION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.4708/2009 (Ambadas R. Kale ..vs.. Shakuntalal A. Kale) -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM:- B.P. DHARMADHIKARI, J. DATE:- NOVEMBER 20, 2009 Heard learned Advocate Shri Alok Upasani for petitioner-husband. Learned counsel states that in matrimonial matter filed under Section 12 of the Hindu Marriage Act for annulment of marriage, the respondent-wife initially moved an application seeking amendment of written statement wherein she wanted to rely upon medical certificate dated 28/8/2004, issued by a qualified Doctor to show that at the relevant time, she was menstruating and had a retroverted normal uterus. Because of the fact that trial had already commenced and written statement was filed on 23/2/2005, the said amendment in relation to the event dated 28/8/2004 was not allowed. Thereafter, present petitioner filed an application for referring her 2 to the medical expert (Gynaecologist) to bring necessary material on record and that application has been rejected by the impugned order after noticing that it is not desirable to undergo such medical test. Learned Advocate Shri Upasani placed reliance upon the judgment of Hon’ble Apex Court reported at 2003(4) Supreme Court Cases 493, in the case of Sharda ..vs.. Dharampal, particularly paragraphs 76 and 81, to urge that matrimonial court has such power. For the same purpose, he has also relied upon Full Bench judgment of Kerala High Court, reported at I (2001) D M C 704 (FB), in the case of Beena ..vs.. Varghese. He states that these are technical matters in relation to which evidence of an expert must come on record and an adverse inference cannot be drawn unless and untill the court directs the spouse to undergo such examination. Hear, it is apparent that the capacity to tender best possible evidence in such circumstances is upon respondent-wife and her one attempt therefor, has already failed. By his application, petitioner-husband had made second such opportunity available to her, which she has opposed. In view of this material on record, when the trial court has rightly refused to force her to undergo such examination, the petitioner may very well pray for drawing an adverse inference in the matter against her. I find that no case 3 is made out warranting interference at this stage. Writ Petition is, therefore, disposed of. However, the petitioner-husband is at liberty to challenge the impugned order dated 21/8/2009 before the appropriate forum after final adjudication of the petition before trial court, if occasion therefor arises. JUDGE Diwale.