IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 3758 of 2010(R) ------------------------- OP.65/2008 of FAMILY COURT, KALPETTA .................... PETITIONER: --------------- K.S.SOPHIA @ K.S.SHIBA, D/O. SASIDHARAN PILLAI, PARISON TEA ESTATE QUARTERS, CHIRAKKARA, MANANTHAVADY.P.O., WAYAND-670644. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT: --------------- T.SHIBU, S/O. T.K.NARAYANAN, KANIYATHTHAZHAM HOUSE, AMBLAKOTH, P.O.MEDICAL COLLEGE, KOZHIKODE-670644. ADV. SRI.MANJERI SUNDERRAJ FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(C) NO. 3758 OF 2010 ============================ DATED THIS THE 15th DAY OF JUNE 2010 JUDGMENT Basant,J. The challenge is against Ext.P5 order. By the said order, the learned Judge of the Family Court had directed both the spouses to appear before the Medical Board of Medical College, Calicut. 2. The wife had filed O.P.No.65/2008, inter alia, under Section 12 of the Hindu Marriage Act for annulment of the marriage on the ground that the marriage has not been consummated. The husband took the stand that the marriage has been consummated. What is crucially relevant is that the husband did not take up a plea that the marriage was not W.P.(C)3758/2010 2 consummated on account of any defect or inadequacy on the part of the wife. 3. Be that as it may, to support the contention that the marriage has not been consummated, the wife filed an application and she was referred to the District Medical Board. The District Medical Board submit Ext.P2 report to the court. The report narrates history as alleged and also the result of examination. The specific findings etc. on examination are given in detail in Ext.P2 report. 4. The husband, it appears at that juncture, filed I.A.No.360/2009 for referring both the spouses to the Medical Board of the Medical College. It appears at that stage, sexual capabilities of the wife were questioned and the examination by the Medical Board was prayed primarily for inputs on that aspect. The wife resisted the claim. According to the wife, her further examination by a Medical Board was not necessary at all. The court below by the impugned order allowed the said petition. 5. The learned counsel for the writ petitioner/wife submits that the impugned order deserves to be interfered and set aside invoking the constitutional jurisdiction of this Court under Article 227 of the Constitution of India. There is absolutely no W.P.(C)3758/2010 3 justification to subject the writ petitioner-wife to undergo further medical examination. The counsel particularly points out that there was no contention ever raised that non consummation is attributable to any inadequacy on the part of the wife. 6. We find merit in that contention. It having not been ever pleaded at any stage that the wife suffers from any sexual inadequacy or incapability, the court below was not certainly justified in directing her to undergo another examination by a different Medical Board. In these circumstances, we are satisfied that the impugned direction for reference to the Medical Board of the Medical College is not justified. Learned counsel for the petitioner submits that Ext.P2 report is not true, correct or acceptable and therefore, a further medical examination is necessary. The court below has considered that contention. The court below evidently did not accept that contention. We do not also find any reason to justify a further examination by way of challenge/appeal against Ext.P2 certificate. Needless to say, the acceptability of Ext.P2 certificate shall finally be decided by the Family Court on the basis of the totality of inputs available before the Family Court. W.P.(C)3758/2010 4 7. This writ petition, in these circumstances, is allowed. Ext.P5 order is set aside. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.