Supreme Court allows husband’s plea for Potency Test on wife’s claim of his impotency

Supreme Court: In appeals filed by the husband against the order passed by the Madras High Court, wherein the Court set aside the order passed by the Trial Court, wherein it allowed the husband’s interim applications for subjecting him to undergo potency test and referring the wife for fertility test and psychological/mental health test for both the parties, the division bench of Vikram Nath and Prashant Kumar Mishra, JJ. has modified the impugned order to the extent it directs the husband to take the medical test to determine his potency. The Bench has directed the test to be conducted within a period of four weeks from the date of this Judgment and to submit the report within two weeks thereafter.

Background:

The parties were married in 2013 at Chennai and thereafter they agreed to move to the United Kingdom where they stayed together for a period of 7½ years. After they returned, they stayed together in a residential property belonging to the wife’s father. However, upon disputes being cropped, they have separated in 2021 and since then, it is alleged by the husband that the wife neither joined his company nor responded to any communication or messages of the husband.

Thereafter, the husband preferred application under Section 9 of the Hindu Marriage Act, 1955 before the Family Court seeking restitution of conjugal rights being. Whereas the wife subsequently filed a divorce petition under Section 13(1) (ia) of the Act, 1955 on the ground that the marriage between the parties has not been consummated because of the husband’s impotency.

Thereafter, the husband moved an application under Section 45 of the Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure, 1908 for subjecting the husband to undergo potential test and at the same time referring the wife for fertility test and psychological/mental health test for both the parties. Thus, the Trial Court allowed the above interim applications on the condition that a competent medical board will conduct the subject tests for both the parties and the report of the medical board be sent to the Court through the advocate Commissioner in a sealed cover. Both the parties were directed not to reveal the result of the tests to any third party and maintain complete secrecy.

This order of the Trial Court was challenged by the wife before the High Court by way of two separate revisions which have been allowed by the High Court under the impugned order.

Court’s order:

The Court said that as the husband is willing to undergo potency test, the High Court should have upheld the order of the Trial Court to that extent. Thus, the Bench while allowing the appeal in part maintaining the order passed by the Trial Court to the extent it directs the husband to take the medical test to determine his potency.