IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 OP (FC).No. 1542 of 2011(R) -------------------------------------- OP.301/2008 of FAMILY COURT, THODUPUZHA .................... PETITIONER ------------------- MURALEEDHARAN.K.V., AGED 34 YEARS, S/O. VASU, RESIDING AT KUNNATHANICKAL HOUSE, MOOLAKKADU.P.O., UDUMBANNOOR VILLAGE, THODUPUZHA. BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.NOEL JOSEPH SRI.S.ASHOK KUMAR. SRI.M.B.SANDEEP SMT.P.T.RAZEENA SRI.K.V.REJANISH SMT.R.PRIYA RESPONDENT(S): -------------------------- VASANTHY, AGED 32 YEARS, D/O. KOCHIRI NARAYANAN, KULATHEPLAKKAL HOUSE, MEETHOTTY KARA, KOOVAKKANDAM.P.O., VELLIYAMATTOM VILLAGE. PIN-685588. R1 BY ADV. SRI.V.K.SUNIL THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 07/07/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(FC) NO.1542/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORIGINAL PETITION 301/2008 FILED BY THE PETITIONER BEFORE FAMILY COURT, THODUPUZHA. P2:- COPY OF THE MEDICAL CERTIFICATE TALUK HEAD QUARTERS, THODUPUZHA. P3:- COPY OF THE INTERLOCUTORY APPLCIATION 1180/2010 FILED BY THE PETITIONER. P4:- COPY OF THE ORDER DTD 4.3.2011 OF THE FAMILY COURT, THODUPUZHA. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. * * * * * * * * * * * * * * * * * * * * * * * * O.P.(F.C) No.1542 of 2011 --------------------------- Dated this the 7th day of July 2011 J U D G M E N T Thottathil B.Radhakrishnan, J. The petitioner married the respondent. Both of them were divorcees. The petitioner filed O.P.No.301/2008 before the Family Court, Thodupuzha seeking a declaration that the marriage between the petitioner and the respondent is null and void. The plea was that the consent of the petitioner was obtained by practicing fraud inasmuch as the respondent allegedly concealed from the petitioner the fact that she was “impotent”. This is the specific plea in Ext.P1 which is the copy of that original petition. In paragraph 3 thereof, it is pleaded that the respondent made the petitioner believed that she is potent and she did not have issues in the previous wedlock only because her then husband was impotent. Ultimately, alleging that such concealment is fraud practiced on the petitioner, he sought declaration that the marriage is a nullity. O.P.(F.C) No.1542/2011 2 2. During the contest before the Family Court, the respondent was subjected to medical examination. The consultant Gynecologist issued Ext.P2 medical certificate. The respondent was found to have normal external genitals and internal reproductive organs and as per ultrasound done on 11/6/2008 she was found to have normal ovulation also. The Gynecologist has, therefore, certified that there is nothing to suggest that the respondent/wife is incapable of having normal sexual life. The Doctor, however, also wrote in the certificate that “potency certificate” is issued for males only as the female is only a passive partner in the sexual life. 3. While certification as to potency, sought for by courts, is only calling for a report regarding the ability to be involved in sexual act, the concept of potency certificate in the medico- legal Parlance is normally in connection with the potency of males and such certificates are made available by Doctors on examination of males in connection with cases of alleged commission of sexual offences or in cases where opinion evidence becomes necessary in dealing with matrimonial cases. The certification of the Doctor in Ext.P2 that there is nothing to O.P.(F.C) No.1542/2011 3 suggest that the respondent/wife is incapable of having normal sexual life is material on record touching what can be called “potency” or absence of frigidity insofar as the female is concerned. 4. With the aforesaid material on record, the petitioner/ husband filed I.A.No.1180/2010 before the Family Court for a direction to the wife to undergo Laproscopy, tubal potency test and also to undergo appropriate medical test before the Medical Board to find out her “fertility capacity”. The Family Court, by a detailed order, dismissed that request. This is under challenge. 5. Though the learned counsel for the petitioner very persuasively argued with reference to the different material aspects of the case, the fact of the matter that ultimately remains is that the fraud that is pleaded in Ext.P1 original petition is with reference to suppression of the so called “potency” and not in relation to any sterility issue. We do not want to dwell much on what is laproscopy; whether that is a test; as to what, if any, is tubal potency test etc. It is neither for the judiciary nor for the parties to decide as to what examination would be suggested or O.P.(F.C) No.1542/2011 4 carried out at the instance of the Medical Board in connection with any request for opinion evidence. When the fact in issue was an allegation by the husband that his consent for the marriage was obtained fraudulently by misrepresenting facts in relation to potency (which evidently discloses an allegation in relation to the ability to have sex), there is no question of the Court going into the issue as to whether the wife had the ability to conceive and deliver a child. All that was required is to decide whether she was capable or not, to have sex and whether any relevant fact as regards that, was suppressed or misrepresented to the petitioner at the time of marriage. We are, therefore, of the view that there is no ground whatsoever to interfere with the impugned order. In the result, this original petition fails and the same is accordingly dismissed. No costs. (sd/-) (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (sd/-) (K.SURENDRA MOHAN, JUDGE) jsr // True Copy// PA to Judge O.P.(F.C) No.1542/2011 5