1 Writ Petn.1423.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 1423 OF 2011 Dr. Viraj Shirish Darode. ... Petitioner. V/s. Mrs. Smita Viraj Darode. ... Respondent. Ms. Seema Sarnaik for the Petitioner. Mr. S.D. Raje for the Respondent. CORAM : R.Y. GANOO, J. DATED : 24th MARCH 2011. P.C. :- The Respondent herein has filed Petition under Section 12(1)(a) and (c) of the Hindu Marriage Act i.e. for nullity against the Petitioner. The Petitioner has filed a counterclaim and has also sought a relief of nullity. During the pendency of this Petition, the Respondent has filed Application at Exhibit 18 seeking two prayers viz. by prayer clause (a) the Respondent wants that the Petitioner should undergo medical examination for verification of vitiligo/lucoderma by a medical expert, by prayer clause (b) it is prayed that medical examination of both the parties should be done for verification of impotency by the medical expert. This application was decided by the learned Judge of the Family Court before whom 2 Writ Petn.1423.11.sxw the main proceedings are filed and by order dated 7th December 2010 the learned Judge of the Family Court has directed the Petitioner to undergo medical examination in the Sassoon General Hospital, Pune for examination in respect of impotency and lucoderma. This order is challenged. 2. Rule is issued on this Petition. Rule is made returnable forthwith. Learned Counsel for the Respondent waives service of the Petition. By consent, Petition is taken up for hearing. 3. The Court is informed that as of today in the main Petition No.304 of 2009 recording of evidence has yet not commenced. After having gone through the impugned order dated 7th December 2010, I am of the view that before the completion of recording of evidence from the side of the Respondent to call upon the Petitioner to undergo medical examination for the purposes mentioned as aforesaid would be premature. It is only after the Respondent gives evidence from her side by herself and all other witnesses the question of asking the present Petitioner to undergo medical examination may arise. In the fitness of things, it would be proper to grant liberty to the Respondent to make an application like Exhibit 18 so that the learned Judge of the Family Court entertaining the main Petition No.304 of 2009 would be able to arrive at a decision whether the medical examination of the Petitioner is required in the light of the evidence which will be placed before the Court by the Respondent upto that stage. 3 Writ Petn.1423.11.sxw 4. In view of this, I am inclined to set aside the order dated 7th December 2010 and grant liberty as mentioned aforesaid. Hence, following order is passed to dispose of the Petition :- (i) Order dated 7th December 2010 passed below Exhibit 18 in Petition A-304 of 2009 is set aside. (ii) After the evidence from the side of the Respondent as well as other witnesses in the said Petition No. 304 of 2009 is over, it will be open for the Respondent to make an application similar to that as of Exhibit 18. The learned Judge of the Family Court shall allow the present Petitioner to file his reply and after hearing the parties, the learned Judge will decide the said application on merits. 5. The Petition stands disposed of in above terms with no order as to costs. It is clarified that order dated 7th December 2010 is set aside merely on the ground that it was passed at a premature stage. 6. After the aforesaid order is passed, learned Counsel for the Respondent submitted that the proceedings before the Family Court, an order be passed directing the learned Judge of the Family Court to dispose of the Petition at an early date. 4 Writ Petn.1423.11.sxw 7. In my view, it is not necessary to pass this order. If he want to do so, he can make application before the Family Court and the said application shall be decided by the Family Court on merits. (R.Y. GANOO, J.)