Ashwin Prakash v. Jisha Jaganath

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K.ABDUL REHIM
T.V.ANILKUMAR
Judgment Date: 2019-02-20
Court Decision / Holding: OP (FC) No.530/2018 is disposed: the impugned order directing the petitioner to undergo virginity test was upheld, and the original petition under Section 9 Hindu Marriage Act was allowed to proceed with consideration of the evidence, but the petition itself was ultimately dismissed by the High Court.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

ASHWIN PRAKASH

Respondents

JINSHA JAGANATH

Legal Representation & Advocates

Counsels for Petitioners

• Smt. P.J. Razia Beevi
• Sri. T.M. Vasudevan
• Sri. TPM. Ibrahim Khan (Sr.)

Counsels for Respondents

• Sri Srinath Girish
• Sri P. Jeril Babu

Case Synopsis & Summary

This petition arises from an order of the Family Court, Kozhikode, directing the wife to undergo virginity testing to determine whether she had sexual relations with her husband since marriage, a measure sought by the husband under Section 9 of the Hindu Marriage Act to enforce conjugal rights. Ashwin Prakash, the petitioner, alleged that his wife withheld conjugal company and suppressed marital life for no valid reason. The wife, Jisha Jaganath, contested the plea, contending that there was no sustained conjugal relationship, and that she required counselling and possibly medical treatment for mental and gynac issues to restore marital life. She argued the husband had problems of potency and that the request and testing would violate privacy and dignity. The Family Court, after considering the arguments, held that a virginity test would help determine the truth of the allegations and would be in the interest of adjudicating the original petition. The court also pointed to previous Kerala High Court pronouncements (Hadiya Firdouse v. Abdul Vahab, Sharda v. Dharmpal) that did not prohibit such tests, and held there was no prohibition in law. On appeal, the High Court upheld the Family Court’s order, holding that the test was legally permissible where the materials on record justified the necessity of determining whether sexual relations occurred after marriage, and that a strong prima facie case existed as per Sharda. Consequently, OP FC 530/2018 was dismissed.

Provisions of Law Cited

Hindu Marriage Act, Section 9Protection of Women from Domestic Violence Act, 2005, Section 12(1)Constitution of India Article 227

Legal Doctrines & Maxims

Strong prima facie case standard (as laid down in Sharda v. Dharmpal)
Right to privacy of the individual (as discussed in Hadiya Firdouse v. Abdul Vahab)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant (Ashwin Prakash) sought conjugal rights under Section 9 of the Hindu Marriage Act, arguing that his wife’s withdrawal of conjugal company necessitated a determination of the truth regarding sexual relations since marriage. He contended that, as in matrimonial disputes, the Court can order medical or related tests when materials on record justify it, citing the principle of a strong prima facie case as per Sharda v. Dharmpal to justify a virginity test to ascertain truth and adjudicate the original petition.

Contentions of Respondents

The respondent-wife disputed the necessity of a virginity test, asserting lack of a sustained conjugal relationship and urging counselling or medical treatment rather than testing. She argued that there was no compelling prima facie case warranting such a test and claimed that ordering a virginity test would infringe her privacy, despite the court’s view of privacy considerations in light of Hadiya Firdouse v. Abdul Vahab.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sharda v. Dharmpal	2003 KHC 398	Positive	The court relied on Sharda to justify directing a medical test where a strong prima facie case exists.
Hadiya Firdouse v Abdul Vahab @ Vahab	2016 (4) KLJ 669	Positive	Cited to support privacy considerations and to note absence of prohibition against certain medical/testing orders in the matrimonial context.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** **OP (FC).No. 530 of 2018** **I.A.NO.944/2018 IN O.P. NO.474/2017 of FAMILY COURT,KOZHIKODE** ## **PETITIONER/RESPONDENT:** **JINSHA JAGANATH, AGED 29 YEARS, D/O.JAGANATHAN, PADOTH HOUSE, KOTAM PARAMBA, PALAKKOTUVAYAL, CHELAVOOR, KOZHIKODE – 673 008. BY ADVS. SRI.SRINATH GIRISH SRI.P.JERIL BABU** ## **RESPONDENT/PETITIONER:** **ASHWIN PRAKASH, S/O.PRAKASH, AGED 31 YEARS, 'KARTHIKA', PIPE LINE ROAD, MALAPARAMBA, CHEVAYOOR, KOZHIKODE - 673017.** **BY ADVS. SMT.P.J.RAZIA BEEVI SRI.T.M.VASUDEVAN SRI.TPM.IBRAHIM KHAN (SR.)** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 6.2.2019, THE COURT ON 20.02.2019 DELIVERED THE FOLLOWING:** **OP (FC).No. 530 of 2018 : 2 :** ## **C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.** **--------------------------------O.P.(FC)No.530 of 2018 ---------------------------------Dated this the 20[th] day of February 2019** ## **J U D G M E N T** ## T.V.ANILKUMAR,J. The respondent/wife, in O.P.No.474/2017 before the Family Court, Kozhikode is challenging an order passed against her by the learned Judge of Family Court on 14.3.2018 in I.A.No.944/2018, directing her to undergo virginity test sought at the request of her husband, who is the original petitioner before that court. 2. Husband/respondent herein sought conjugal company of her by invoking Section 9 of the Hindu Marriage Act in the O.P. complaining that he was deprived of his right to company, by her willful withdrawal for no good reasons. But the petitioner/wife opposed the prayer for conjugal company on the ground that the respondent did not maintain a happy ## **OP (FC).No. 530 of 2018 : 3 :** marital life with her, both mentally and physically. He refused to share sex with her and did not even have sexual intercourse till date. According to her, he requires proper counselling as well as medical treatment, if any to persuade him to lead a happy marital life. 3. In order to show the allegations levelled against him to be false and unfounded, the respondent sought through I.A.No.944/2018 an order directing the petitioner to undergo virginity test, which according to him, will reveal the true sexual relationship that existed between the parties. According to him, she did not conceive for her own gynac reasons as revealed from the scanning to which she was subjected to at the Aspire Fertility Centre, Bangalore on 18.6.2016. 4. Petitioner opposed the plea for directing her to undergo virginity test alleging that, the respondent is solely at fault and is not capable of performing sexual intercourse and further nothing came out during the tests conducted at the Aspire Fertility Centre, Bangalore indicating that she requires any treatment. The nature of the contention in the objection appears to be that, in fact the respondent was badly in need of **OP (FC).No. 530 of 2018 : 4 :** potency test, since he has developed gross disinclination to sex. 5. The learned Judge of the Family Court, after considering the contentions of the parties, found that, in order to determine the real question in controversy between the parties, the petitioner has to be subjected to virginity test, which would help to reveal the truth or otherwise of the allegation raised in the objection submitted by the petitioner to the O.P. before the court below. It was also held that, there is no prohibition under law debarring the Family Court from issuing a direction to a female spouse to undergo virginity test since such direction does not encroach into the right of privacy of a citizen as held in High court of Kerala in **Hadiya Firdouse** v. **Abdul Vahab @ Vahab** in **[2016 (4) KLJ 669]** . Accordingly I.A.No.944/2018 was allowed through the impugned order. 6. Challenge in this original petition filed under Article 227 of the Constitution of India is that, the impugned order of the court below is illegal and unsustainable, since there was no strong prima facie case made out by the respondent necessitating any direction sought by him, in view of the ## **OP (FC).No. 530 of 2018 : 5 :** decision in **Sharda** v. **Dharmpal [2003 KHC 398]** . According to learned counsel for the petitioner, virginity test is uncalled for in the present case to decide the real issues arising between the parties in the O.P. 7. We heard both sides. 8. We are of the clear opinion that, the order directing the petitioner to undergo virginity test has been issued in accordance with law, because determination of the question as to whether the spouses had, in fact, sexual relationship with each other ever since their marriage is one of the crucial questions arising for adjudication in the original petition. The petitioner wife could be well justified in withdrawing or rather denying her company to her partner if she actually was denied the marital right to have sexual intercourse with him. No conjugal company can exist without the spouses sharing sex as between them. If ultimately the petitioner, wife succeeds in showing that she was denied sex, it would be a valid ground to refuse for the Family Court to refuse to order restitution of conjugal rights claimed against her. Therefore, the truthfulness of the allegation as to whether or not the respondent shared ## **OP (FC).No. 530 of 2018 : 6 :** sex with petitioner is an essential question requiring determination in the O.P. The court below rightly took note of this aspect. 9. In **Sharda** v. **Dharmpal [2003 KHC 398]** , a Bench of three Judges of the Supreme Court held that, in matrimonial issues, spouses can be directed to undergo medical test if the materials on record justified such a course. It was held that the applicant seeking such a test ought to establish a strong prima facie case for securing an order directing the opposite spouse to undergo a medical test. 10. After having gone through the materials on record, we are satisfied that the respondent could establish a strong prima facie case as stipulated in **Sharda** 's case (supra), warranting issuance of an order for virginity test. The allegation that there was no sexual relationship between spouses, for the first time, came out only through the petitioner/wife and she sought to establish it by referring to a few circumstances in the case. She even alleges that, as a matter of fact, the respondent is liable to be subjected to a potency test, which she did not insist till date as it would **OP (FC).No. 530 of 2018 : 7 :** certainly offend his honour. She has made an assertion that the reason for her failing to conceive is not attributable to any gynac problems but only due to the incapacity of husband to perform sexual intercourse. From the fact scenario at hand, it is so clear that the respondent, husband has succeeded in making out a very strong prima facie case as required in **Sharda** 's case (supra). 11. We, therefore, do not find any reason to interfere with the impugned order of the court below. O.P.(FC)No.530/2018 is accordingly dismissed. Sd/- **C.K.ABDUL REHIM JUDGE** Sd/- **T.V.ANILKUMAR, JUDGE** Bb **OP (FC).No. 530 of 2018 : 8 :** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PETITION DATED 12.05.2017 IN O.P.474/2017 ON THE FILE OF THE FAMILY COURT, KOZHIKODE.** - **EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT DATED 29.08.2017 IN O.P.474/2017 ON THE FILE OF THE FAMILY COURT, KOZHIKODE.** - **EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE METROPOLITAN MAGISTRATE COURT(TRAFFIC), BANGALORE DATED 05.08.2017 UNDER SECTION 12(1) OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.** - **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT DATED 14.06.2018 IN SUPPORT OF I.A.944/2018 IN O.P.474/2017 ON THE FILE OF THE FAMILY COURT, KOZHIKODE.** - **EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT DATED 26.06.2018 IN I.A.944/2018 IN O.P.474/2017 ON THE FILE OF THE FAMILY COURT, KOZHIKODE.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 31.06.2018 IN I.A.944/2018 IN O.P.474/2017 ON THE FILE OF THE FAMILY COURT, KOZHIKODE.** - **RESPONDENT'S EXHIBITS:** - **EXHIBIT R-1(A) A TRUE COPY OF THE MEDICAL REPORT DATED 18.6.2016 ISSUED FROM THE ASPIRE FERTILITY CENTRE, BANGALORE ISSUED TO THE PETITIONER** - **EXHIBIT R-1(B) A TRUE COPY OF THE PELVIC VAGINAL SCAN DATED 18.6.2016 SHOWING THE SCANNING PICTURES OF THE PETITIONER** - **EXHIBIT R-1(C) A TRUE COPY OF THE IMPRESSION OF THE DOCTOR ANU JOSEPH DNB (OBG)FELLOWSHIP** **OP (FC).No. 530 of 2018 : 9 :** **IN FETAL MEDICINE EXHIBIT R-1(D) A TRUE COPY OF THE MEDICAL PRESCRIPTION RECEIVED ON 21.6.2016 BY IMPRESSION OF THE DOCTOR ANU JOSEPH DNB (OBG) FELLOWSHIP IN FETAL MEDICINE EXHIBIT R-1(E) A TRUE COPY OF THE PRESCRIPTION AND ADVICE DATED 21.6.2016 OF THE DOCTORS OF THE ASPIRE FERTILITY CENTRE ON 23.6.2016 AND 24.6.2016 ISSUED TO THE PETITIONER EXHIBIT R-1(F) A TRUE COPY OF THE ADVICE OF THE DOCTOR DATED 24.6.2016 FOR REVIEW ON 10.7.2016 EXHIBIT R-1(G) A TRUE COPY OF THE FOLLICULAR MONITORING CHART DATED 8.7.2016 PRESCRIBING TSI/IUI/IVF AND AGREED TO CONSULT ON 18.7.2016 EXHIBIT R-1(H) A TRUE COPY OF THE LETTER WRITTEN BY THE PETITIONER TO THE RESPONDENT ON THE 1ST DAY OF MARRIAGE ANNIVERSARY** ## **//True Copy//** **P.A. To Judge** **Bb**