THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.5263 of 2009 22.01.2010 Between: Kancharla Rajasekhar ….Petitioner AND Kancharla Prameela Rani …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.5263 OF 2009 ORDER: The revision petition is filed against an order of Court of Senior Civil Judge, Tadepalligudem in I.A.No.1011 of 2009 in O.P.No.81 of 2007 whereby and whereunder the prayer of the petitioner for being sent to local Area Government Hospital for conducting potentiality test was rejected. This Court ordered notice to respondent through her counsel in the lower Court, which is duly served. Again this Court directed notice to respondent which is duly taken out by learned counsel for petitioner, which has been served as per ‘memo of proof of service’ filed vide U.S.R.No.26 of 2010. In spite of service of notice, none appears for respondent. Therefore, the matter is being decided ex parte. The petitioner instituted original petition under Section 13(1)(a) of the Hindu Marriage Act seeking divorce on the ground of cruelty. The respondent entered appearance and opposed divorce petition inter alia alleging that petitioner is impotent. She then filed I.A.No.222 of 2009 for sending petitioner to medical examination. The same was not pressed and therefore, it was dismissed. Petitioner filed I.A.No.1011 of 2009 for being sent to medical examination, which was rejected. In cases requiring medical expert opinion with regard to the fact in issue or a relevant fact, discretion vests with the Court to seek such opinion. In cases where it is alleged that the husband is impotent and to disprove such allegation, the husband is willing to be examined by Doctors, nothing prevents the Court to exercise discretion in favour of husband. In Sharda v Dharmpal[1], Supreme Court considered the question as to whether the party to divorce proceedings can be compelled to a medical examination and held as under (paras 76, 77, 78 and 79 of SCC). In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia...etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved. … If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected. … It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order. … If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession. As seen from the affidavit of the petitioner filed in support of the interlocutory application, he himself offered to medical examination and therefore, non-exercise of discretion in his favour is erroneous. The civil revision petition is therefore allowed. Consequently, I.A.No.1011 of 2009 is allowed and lower Court is directed to send the petitioner to local Area Government Hospital for conducting potentiality test. Needless to mention that the petitioner shall bear the costs of such tests. The civil revision petition is accordingly allowed. No costs. _______________ (V.V.S.RAO, J) 22.01.2010 pln [1] (2003) 4 SCC 493 : 2003 (3) ALD 1 (SC)