1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.8511 of 2009 Shreya Deepak Jadhav .. .. Petitioner v/s. Deepak Vasudeo Jadhav .. .. Respondent Mrs.Latika H. Belindage for Petitioner. Mr.R.S. Raymond with Mr.V.P.Shastri i/by M/s.Raymond & Co. for Respondent. ------ CORAM : SMT.ROSHAN DALVI, J. DATED : 3rd March, 2010 P.C. : 1.Rule, returnable forthwith. 2.The Petitioner-wife has challenged the order of the learned Principal Judge dated 25.6.2009, directing both the husband and wife to a medical check up in a Government or Municipal Hospital with regard to their physical capacity to consummate their marriage. 3.The husband filed a Petition for divorce on the ground of cruelty. The wife has defended the Petition and has expressed her willingness to continue her marriage and live with the Respondent-husband herein. In reply to 2 the various allegations of cruelty, the wife has filed her Written Statement in which she has, inter alia, stated that the marriage between the parties was not consummated for about one and half years under one pretext or other by the husband. She has narrated certain incidents when the husband, by his conduct of keeping away, failed to consummate the marriage. 4.The parties have had a strained relationship. Consequently, non-consummation of marriage for a certain period may be alleged by one of the spouses. However, that would not be a physical incapacity to consummate the marriage permanently. In fact, the Written Statement of the wife is that due to the husband s conduct the marriage was not consummated for one and half years. Even the learned Judge has observed that the wife has stated that the marriage was consummated from September 2007, which means that non- consummation, if any, is not due to any physical deformity and that period lasted from May 2006 when the parties married until September 2007. Consequently, the medical check up would be futile. Hence the order of the learned Judge requires to be interfered with and the error is required to be corrected. 5.Consequently, the order of the learned Principal Judge, Family Court, Bandra, Mumbai dated 25.6.2009 is set 3 aside. The Writ Petition is allowed and Rule is made absolute accordingly. The parties shall continue with their Divorce Petition on the ground of cruelty. 6.No order as to costs. (SMT.ROSHAN DALVI, J.)