DEBOSMITA GAYEN NEE GUIN Vs. RUDRA PRASAD GAYEN

JUDGEMENT

(1.) The wife in a matrimonial suit has challenged an order whereby the petitioner/wife's prayer for a medical examination of both parties with regard to impotency was turned down by the trial court. The primary grounds on which the trial court refused such prayer were that there was no specific allegation as to impotency and that the prayer portion of the application-in-question was evasive.

(2.) Learned senior counsel appearing for the petitioner argues that the examination sought was absolutely necessary for a complete adjudication of the suit. It was pointed out that the specific allegation levelled by the husband in the application under Section 25 of the Special Marriage Act, 1954, particularly in paragraph 22 thereof, was that the marriage between the parties was not consummated owing to wilful refusal of the present petitioner/wife to consummate the marriage. It is further pointed out that the petitioner, in denial, averred that the husband never performed his marital duty and assigned one reason or the other to avoid sexual union with the wife and that there might some physical defect in the opposite party/husband. It was also averred inter alia that there may be even some physical defect or some "effect in the mind" of the husband to avoid sexual intercourse. In such view of the matter, it is argued that it was absolutely necessary to examine both parties to ascertain the veracity of such allegations and counter-allegations.

(3.) Learned senior counsel appearing for the opposite party, on the other hand, argues that the present application was made merely to stall the suit which has already been pending for a long time. It is further submitted that the petitioner/wife has been harassing the opposite party/husband by filing several proceedings against the opposite party. It is further submitted that there were previous directions of this Court directing the suit to be heard out expeditiously without any unnecessary adjournment, which would be violated if the matter is stalled further.