Decided on November 08,1954



- (1.) This Civil Revision Petition is filed as against the order of the Subordinate Judge of Eluru, in I. A. No. 196 of 1953, in O. S. No. 53 of 195 dismissing an application filed by the petitioner to direct the medical examination of respondent 1, as to whether she had become enceinte and given birth to a child at any time. The suit was filed by the plaintiff, respondent 1 for partition and recovery of a one-third share of the suit properties, on the ground, that her husband died divided from his brothers, the petitioner and respondent. 2 herein.Alternatively, she prayed that, if the partition was found to be not true, she was entitled to a one-third share in the non-agricultural properties and for maintenance. It was contended by the petitioner that the plaintiff had, given birth to a child subsequent to her husbands death and being unchaste, she was not entitled to recover any maintenance. Issue 8 was raised in regard to the question of respondent 1s chastity.
(2.) The present application was filed on 14.2.1953, to find out, by medical examination, whether respondent I gave birth to a child at any time. The court below followed the judgment of Raghava Rao J., in -- Vendateswalu v. Subbayya. AIR 1951 Mad 910 (1) (A), and held that the respondent could not be compelled to undergo medical examination. The learned Advocate for the petitioner contended that under S. 14, Evidence Act, facts showing the existence of any state of body is a relevant fact and that he is entitled to lead evidence to show that the respondent was enceinte after her husbands death.The respondents advocate does not challenge that position that evidence may be let is to prove that fact. The only question is, whether there is any power in Court to compel an unwilling party to be medically examined. The petitioners advocate has not drawn my attention to any specific provision in the Code of Civil Procedure or in the Indian Evidence Act, for compelling the attendence of a party for medical examination. It is on that very ground that the learned Judge, Raghava Rao, held in AIR 1951 Mad 910 (1) (A), that such an application was not maintainable.
(3.) Section 151, Civil P. C., was next sought to be relied on, as conferring power on the Court to pass such an order. The learned advocate for the respondent contended that such an examination would offend the provisions of Art. 21 of the Constitution which enacts that "no person shall be deprived of his life or personal liberty except according to procedure established by law".As pointed in -- A. K. Goplan v. State of Madras, AIR 1950 SC 27 (B). "The right to the safety of ones life and limbs and to the enjoyment of personal liberty, in the sense of freedon from phsical restraint and coercion of any sort are the inherent birth-right of a man. The essense of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of freedom to do particular things ............... An individual can be deprived of his life or personal liberty only by action of the State either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law ................................ There must be a substantive law, under which the State is empowered to deprive a man of his life and personal liberty and such law must be ..... valid law which the Legislature is competent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down.";

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