1. This writ petition is under Article 227 of the Constitution of India wherein the order dated 05.09.2018 passed in Matrimonial Title Suit No.270 of 2013 is under challenge whereby and whereunder the petition filed by the petitioner/plaintiff
dated 09.04.2018 under Order XXXII-A Rule 5 r/w Section 151 of Code of Civil Procedure has been rejected wherein a direction was sought for for medical examination of the respondent/wife.
2. The brief facts of the case of the petitioner as per the pleading made in the writ petition is that the marriage between the petitioner/plaintiff/husband and the respondent/wife was solemnized on 15.02.2004 and thereafter they have started
residing together in the petitioner's house at Khunti but the respondent/wife did not indulge in any sexual intercourse with the petitioner/husband on the nuptial night and afterwards.
3. The petitioner however attempted to make sexual intercourse with the respondent but the respondent only once had sexual intercourse with the petitioner that too was one sided and whenever the petitioner had attempted, the respondent has
refused, therefore, it is the allegation of the petitioner that the respondent is not in capacity to consummate the marriage.
The further fact is that the respondent has lodged a criminal case being Khunti P.S. Case No.64 of 2009 for commission of offence under Section 498-A of Indian Penal Code and under Section 3/4 of Dowry Prohibition Act against the
petitioner and his family members but subsequently the matter was compromised on 01.02.2010 and on the basis of the terms of compromise the case was disposed of vide order dated 12.05.2010.
4. The respondent/wife left her matrimonial home on 20th January, 2011 along with her belongings, clothes, cash of Rs.8,000/- and in consequence thereof, the petitioner had no option and instituted a matrimonial title suit for decree of divorce
by filing an application under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage in which the respondent had appeared and filed written statement.
Thereafter, the matter has been posted at the stage of evidence and evidences of both the parties have been concluded. The respondent was thoroughly cross-examined and then a petition has been filed on 09.04.2018 under Order XXXII-A
Rule 5 r/w Section 151 of C.P.C. for issuance of direction for medical examination of the respondent but the same having been refused by the trial Court, the instant writ petition has been filed.
5. The learned counsel for the petitioner has submitted that in order to come to the rightful conclusion and for best and appropriate adjudication of the issue, the medical examination of the respondent/wife, in order to assess the impotency, is
required to be done, therefore the said petition was filed but without appreciating the fact that in absence of the medical examination the proper adjudication of the issue is not possible, the trial Court has rejected the petition.
6. Learned counsel appearing for the petitioner has relied upon the judgments rendered by the Hon'ble Apex Court in the cases of Sharda vs. Dharmpal, reported in (2003) 4 SCC 493 and Lalit Kishore vs. Meeru Sharma and Anr., reported in
(2009) 9 SCC 433.
7. Having heard the learned counsel for the petitioner and gone across the pleadings made in the writ petition as also the impugned order and from its perusal it is evident that matrimonial title suit has been filed under the provision of Section
13(1)(ia) & (ib) of the Hindu Marriage Act, 1955.
It is further evident that prior to filing of the said matrimonial title suit, the respondent/wife has instituted a criminal case against the petitioner/husband and his family members for commission of offence under Section 498-A of the Indian Penal
Code and Section 3/4 of Dowry Prohibition Act being numbered as Khunti P.S. Case no.64 of 2009, however, the same was compromised on 01.02.2010 and in terms thereof, the case was disposed of vide order dated 12.05.2010.
It is further evident that in the matrimonial title suit, the respondent/wife has put her appearance, filed written statement and disputed the ground for dissolution of marriage and thereafter issues have been framed by the trial Court and the
parties have been examined/cross-examined.
8. The respondent/wife has also been cross-examined thoroughly but she all along disputed the allegation of impotency/infertility and only thereafter a petition has been filed on 09.04.2018 under Order XXXII-A Rule 5 read with Section 151 of
C.P.C.
9. The content of the said application has seriously been disputed by the respondent/wife by filing rejoinder stating inter alia therein that the petitioner/plaintiff wants to hamper on the prestige of his wife and the prestige of a lady and that too
when each and every question has been answered boldly by her in course of her cross-examination and further the petitioner wants to move beyond his pleading. Considering the aforesaid aspect of the matter and taking into consideration
stage of the suit, the petition dated 09.04.2018 has been rejected against which the instant writ petition has been filed.
10. This Court before going into the legality and propriety of the order deem it fit and proper to discuss about the provision of Order XXXII-A Rule 5 of the Code of Civil Procedure which speaks as follows:-
“5. Duty to inquire into facts.â€"â€"In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the
defendant.â€
11. It is evident from the provision of Order XXXII-A Rule 5 of C.P.C. that every suit or proceeding to which this order applies, it shall be the duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into
any facts alleged by the defendant, meaning thereby, the duties cast upon the Court to inquire, so far it reasonably can, into the facts alleged by the defendant.
12. The issue with respect to the power to be exercised by the matrimonial Court was the subject matter before the Hon'ble Apex Court in the case of Sharda vs. Dharmpal (supra) wherein the Hon'ble Apex Court has been pleased to
formulate two questions:-
(a) whether a matrimonial Court has the power to direct a party to undergo medical examination ?
(b) whether passing of such an order would be in violation of Article 21 of the Constitution of India ?
The Hon'ble Apex Court after discussing the scope and the jurisdiction of the trial court has been pleased to hold at paragraph 76 that in all such matrimonial cases where divorce is sought for, 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 a spouse against the other spouse 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 the respondent avoids such medical examination on the ground that it violates his or her privacy or for that 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 an absolute right.
It is thus evident that the judgment rendered by the Hon'ble Apex Court in the case of Sharda vs. Dharmpal (supra) is on the text of violation of fundamental rights as conferred under Article 21 of the Constitution of India and in that
circumstances, the denial of medical examination has been made to be not proper in order to reach to the rightful conclusion.
The other judgment rendered by the Hon'ble Apex Court in the case of Lalit Kishore vs. Meeru Sharma (supra) has been pleased to deliver the judgment regarding the power to be exercised by the matrimonial Court to send the party for
medical examination, as the case may be, by putting reliance upon the judgment rendered in the case of Sharda vs. Dharmpal (supra).
13. It is not in dispute that each and every judgment is to be tested on the basis of facts and circumstances of the case and there is no universal application of any judgment, this Court therefore has examined the factual aspect in order to
assess as to whether the judgment rendered by the Hon'ble Apex Court in the case of Sharda vs. Dharmpal (supra) is applicable in the facts and circumstance of the instant case or not ?
14. As has been stated hereinabove and is evident from the factual aspect involved in the case of Sharda vs. Dharmpal (supra) the judgment has been delivered purely on the context of the provision of Article 21 of the Constitution of India but
what has been gathered by this Court by going across the finding recorded by the trial Court in the impugned order that is not the ground therein rejecting the application on the ground of violation of the provision of Article 21 of the Constitution
of India rather the ground for rejection is that the respondent/wife has thoroughly been cross-examined as would be evident from the evidence on oath of the respondent/wife and her cross-examination as contained under Annexure-6/1
appended to the writ petition, the same is being referred for ready reference hereinbelow:-
“In the Court of Sri Rajesh Kumar No-1-D.A.S.J. Ist at Khunti M.T.S. No. 270/2013
Birju Parsad Vrs Nitu Devi (Nitu Gupta)
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 FORM OF HEADING OF DEPOSITION
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Deposition of witness No........ DW3.......... for the ….......Opposit Party............. Aged about..................... 32 Years............... taken on solemn affirmartion on the.......................... 17 day of....................... .......................
2018.................... My name is …........ ........................................................................................
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9.4.1815. It is only after thorough cross-examination of the respondent/wife the petition was filed on 09.04.2018 i.e., on the same date when her cross-examination was concluded and as such it is after thought and when nothing has
come out in the cross-examination of the respondent/wife in order to fill up the lacuna, the petition has been filed under Order XXXII-A Rule 5 and as such the same cannot be said to be a bone fide approach of the petitioner and in view
thereof, the judgements rendered by the Hon'ble Apex Court in the cases of Sharda vs. Dharmpal (supra) and Lalit Kishore vs. Meeru Sharma (supra) are not applicable.
16. It also needs to refer herein that this Court has directed the learned counsel for the petitioner to produce the medical report, reference of which has been made in the writ petition wherein it has been stated that the respondent/wife has
been treated in the hospital and therefore, the matter was adjourned vide order dated 01st April, 2019 but no such report has been produced by the petitioner, although, a copy of the scan report dated 10.01.2005 has been produced but the
same is illegible so the question would be that even accepting the said report of the year 2005 is against the respondent/wife then why this divorce petition has been filed at a belated stage when a criminal case has been instituted in the year
2008, so the application filed by the petitioner is after thought and to fill up the lacuna.
17. This Court after going across the finding recorded by the trial Court is of the view that no error has been committed rather the trial Court after taking into consideration the factual aspect and more particularly after perusing the cross-
examination of the respondent/wife has rightfully passed the order, therefore, the same does not warrant any interference by this Court in exercise of power conferred under Article 227 of the Constitution of India.
18. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Hon’ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra
Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to hold therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full
Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with
limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those
judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that
they do it in a legal manner.
19. The power of superintendence is not to be exercised unless there has been;
(a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or
(b) gross abuse of jurisdiction; or
(c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.
20. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in
exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion
which the court or tribunal has come to.
21. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts.
22. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227
cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
23. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial
superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or
quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.
24. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the
tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which
is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of natural justice have been flouted.
25. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the
jurisdiction has to be very sparingly exercised.
26. In view thereof, the writ petition fails and accordingly stands dismissed.
