Hadiya Firdoose v. Abdul Vahab

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 28TH DAY OF JULY 2016/6TH SRAVANA, 1938 OP (FC).No. 355 of 2016 (R) ------------------------------------- PETITIONER(S): --------------------- HADIYA FIRDOUSE, AGED 25, D/O. K.K.MOHAMED HYDER, KOLLIYIL HOUSE, KODUNGALLUR, THRISSUR DISTRICT, NOW RESIDING AT POST BOX NO.4020, PURCHASING DEPARTMENT MINISTRY OF INTERIOR, DOHA, STATE OF QATAR. BY ADVS.SRI.ALAN PAPALI SRI.M.R.DHANIL RESPONDENT(S): ------------------------ ABDUL VAHAB @ VAHAB, S/O. SULTAN MOIDEEN, KANJIRAPARAMBU HOUSE, VEDIMARA, MANNAM P.O., NORTH PARAVOOR, ERNAKULAM DISTRICT-683 520. BY ADV. SRI.G.HARIHARAN BY ADV. SRI.PRAVEEN.H. BY ADV. SMT.A.ANJANA BY ADV. SMT.K.S.SMITHA BY ADV. SMT.T.T.SHANIBA THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 355 of 2016 (R) ------------------------------------ APPENDIX PETITIONER(S)' EXHIBITS ----------------------------------- EXHIBIT P1 : A COPY OF THE ORDER IN IA NO.1766 OF 2016 IN OP 156/2010 DATED 25.6.2016. EXHIBIT P2 : A COPY OF THE PETITION IN OP(DIVORCE)NO.159/2010 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT P3 : A COPY OF THE OBJECTION FILED BY THE RESPONDENT IN OP NO.159/2010 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT P4 : A COPY OF THE PETITION IN OP NO.156/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT P5 : A COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN OP NO.156/2010 BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT P6 : A COPY OF THE ORDER IN IA NO.1918/2012 IN OP NO.156/2010 DATED 24.6.2012 BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT P7 : A COPY OF THE JUDGMENT IN OPFC NO.4557 OF 2012 DATED 16.1.2013. EXHIBIT P8 : A COPY OF THE APPLICATION IN IA NO.1766/2016 IN OP NO.156/2010 DATED 24.5.2016. EXHIBIT P9 : A COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN IA NO.1766/2016 IN OP 156/2010 DATED 4.6.2016. EXHIBIT P10 : A COPY OF THE ORDER DATED 3.2.2016 IN OP(FC)NO.6/2016. RESPONDENT(S)' EXHIBITS -------------------------------------- EXT.R1(a) : TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER WITH THE RESPONDENT AND WITH THE RESPONDENT'S FAMILY AFTER HER MARRIAGE WITH THE RESPONDENT. EXT. R1(b) : TRUE COPY OF ONCE SUM EMAIL SENT ON 26.12.2009 AT ABOUT 7.55 P.M. BY THE PETITIONER SENT TO THE RESPONDENT. EXT.R1(c) : TRUE COPY OF THE EMAIL MESSAGE DATED 7.12.2009 SENT BY THE PETITIONER TO THE RESPONDENT. EXTR1(d) : TRUE COPY OF THE PETITION FILED BY THE RESPONDENT AS I.A. NO. 1766/2016 IN O.P. NO. 156/2010 BEFORE THE FAMILY COURT, ERNAKULAM. EXT. R1(e) : TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN CONNECTION WITHY CRL.M.C. NO. 22354/2011 IN CRIME NO. 1627/2009. EXT. R1(f) : TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUE DBY SUB REGISTRAR, NORTH PARUR ON 28.10.2009. EXT. R1(g) : TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE MASJID OFFICIALS. C.R. ## K. SURENDRA MOHAN & MARY JOSEPH, JJ. - - - - - - - - - - - - - - - - - O.P.(F.C.) No. 355 of 2016 - - - - - - - - - - - - - - - - - Dated this the 28[th] day of July, 2016. ## JUDGMENT ## Surendra Mohan, J. The respondents in O.P. No. 156 of 2010 of the Family Court, Ernakulam is before us challenging Ext.P1 order of the said court in I.A. No. 1766 of 2016 in O.P. No. 156 of 2010. As per the impugned order, the Family Court has directed that the petitioner herein be referred to a Medical Board consisting of a lady Gynecologist to examine and report whether the marriage of the petitioner was consummated or whether the petitioner is still a virgin. According to the petitioner, such examination as directed by Ext.P1 is absolutely irrelevant and unnecessary for the purpose of deciding the issues in controversy before the said court. It is O.P.(F.C.)355/2016. 2 further contended that, a petition for identical relief, that was earlier filed by the very same respondent, was dismissed by the Family Court. Though the same was challenged before this Court, this Court had also confirmed the order of the Family Court. For the said reason also, it is contended that Ext.P1 order is unsustainable and liable to be set aside. 2. According to Adv. Alan Papalli, who appears for the petitioner, there are two Original Petitions pending before the Family Court, Ernakulam, O.P. Nos. 156 of 2010 and 159 of 2010. O.P. No. 156 of 2010 is filed by the respondent herein seeking a decree for restitution of conjugal rights. O.P. No. 159 of 2010 is filed by the petitioner herein seeking a decree for dissolution of the marriage solemnized between them on the ground of fraud, coercion, threat, deceit etc. It is contended by the counsel that, in the nature of the reliefs sought for in the petitions, which are being tried together, the question of ascertaining whether the marriage has been O.P.(F.C.)355/2016. 3 consummated or not does not arise for consideration. The basic issue that arises for determination is only whether the marriage was valid or not and whether the petitioner was living separated from the respondent for justifiable reasons or not. In view of the above, it is contended that the present petition to subject the petitioner to a medical examination is only intended to harass and spite her. The counsel also vehemently contends that ordering of such medical examination is an intrusion into the right of privacy guaranteed to her by Article 21 of the Constitution of India. The counsel places reliance on the decision of the Apex Court in support of this contention. Apart from the above, according to the learned counsel, a petition for identical reliefs had been filed by the respondent in the very same Original Petition. The said petition had been considered by the Family Court and dismissed, as evidenced by Ext.P6 order. The respondent had thereafter filed a petition to review the said order, O.P.(F.C.)355/2016. 4 unsuccessfully. Not satisfied, the respondent had carried the matter before this Court in O.P.(F.C.) No. 4557 of 2012. The said Original Petition was also dismissed by this Court as per Ext.P7 judgment, confirming the order of the Family Court. In view of the above, the present petition ought to have been dismissed by the Family Court, it is contended. The counsel also takes strong objection to the timing of the present petition. According to the counsel, the proceedings are of the year 2010 and the matter is only being protracted for one reason or the other. Faced with the necessity of having the matter brought to an end expeditiously, the petitioner had approached this Court by filing O.P.(F.C.) No. 6 of 2016. As per Ext.P10 judgment, this Court had directed both the Original Petitions to be disposed of within a period of three months from the date of receipt of a copy of the said judgment. In spite of the above, it is contended that the matter is being kept pending at the instance of the O.P.(F.C.)355/2016. 5 respondent. Since the Family Court has omitted to take into account any of the above factors, the counsel submits that Ext.P1 order is liable to be interfered with and set aside. 3. Adv. G. Hariharan, who appears for the respondent, on the other hand contends that though an earlier petition had been filed by him for an identical relief, the same had been dismissed only for the reason that, the court felt such medical examination was unnecessary at that stage. Placing reliance on the concluding portion of Ext.P6 order, the counsel points out that the Family Court had specifically mentioned that the same was rejected only for the time being. In view of the above, according to the counsel, the said proceedings do not preclude the right of the respondent to seek the very same relief at this point of time. It is contended that, the evidence in the case is over, and in the nature of the evidence that has come on record, it has become necessary to prove that the marriage had been consummated. According to 6 O.P.(F.C.)355/2016. the counsel, there is no other method of proving that the marriage had been consummated, except by having the petitioner subjected to a medical examination. It was considering the above facts that the Family Court has allowed the prayer of the respondent. Therefore, it is contended that, there are absolutely no grounds to interfere with the impugned order Ext.P1. In support of his contention that, the conduct of such medical examination is not a violation of the right to privacy enshrined under Article 21 of the Constitution of India, the counsel places reliance on the decision of the Supreme Court in Dipanwita Roy v. Ronobroto Roy ((2015) 1 SCC 365). 4. Heard. We have heard the counsel appearing for the respective parties at length. We have been taken through the pleadings in the cases, produced as exhibits in these proceedings. We have considered the rival contentions, anxiously. O.P.(F.C.)355/2016. 7 5. There are two Original Petitions pending before the Family Court, between the parties. O.P. No. 156 of 2010, evidenced herein by Ext.P4, is filed by the respondent against the petitioner for a decree seeking restitution of conjugal rights. O.P. No. 159 of 2010 evidenced herein by Ext.P2, is filed by the petitioner against the respondent for a decree declaring that the marriage solemnized between her and the respondent under the provisions of the Special Marriage Act on 28.10.2009 was null and void on the ground of fraud, coercion, deceit, threat etc. In the nature of the reliefs sought for in these petitions, the enquiry of the Family Court would have to be essentially confined to deciding whether there was any fraud, coercion, threat etc in so far as solemnization of marriage between the petitioner and the respondent was concerned, and in the case of the petition for restitution of conjugal rights, the enquiry would have to be confined to whether the petitioner was residing separated from the O.P.(F.C.)355/2016. 8 respondent, for valid reasons. The question as to whether the parties had lived together after the marriage or whether the marriage had been consummated, may not be relevant in deciding whether the reliefs sought for in the petitions should be granted or not. It is true that the respondent has a case that the marriage had been consummated, that the parties had lived together as husband and wife for three months, that the petitioner had become pregnant and that she had been forcibly taken away by her parents. However, the above aspects could be proved by other evidence of probative value. We notice that the petitioner has produced photographs along with his counter affidavit in support of his contention that a proper and valid marriage had been solemnized and that the petitioner had participated in such ceremonies, voluntarily. However, we do not want to consider the evidentiary value of such records, in these proceedings for the reason that the question is pending consideration of the Family Court. We O.P.(F.C.)355/2016. 9 only want to point out that the question as to whether the marriage had been consummated or whether the parties had lived together as alleged are all aspects that could be proved by other acceptable evidence. The question as to whether the petitioner should be subjected to medical examination by a Medical Board to determine whether she continues to be a virgin or not does not in the circumstances of the present case assume much relevance. If the petitioner succeeds in proving that she was under coercion or was harbouring under the influence of the fraud practiced on her, she would be certainly entitled to succeed in her claim for a decree for nullity of her marriage, irrespective of whether the same was consummated or not. Therefore, we do not consider that the necessity of compelling the petitioner to examination by a Medical Board is indispensable for determining the controversy in these cases. 6. The counsel for the petitioner has strongly put forward a contention that subjecting the petitioner to O.P.(F.C.)355/2016. 10 examination by a Medical Board would be a serious infringement of her right to privacy under Article 21 of the Constitution of India. The counsel has placed reliance on the decision of the Apex Court in R. Rajagopal v. State of T.N. (AIR 1995 SC 264), particularly paragraph 28 thereof. In the said case, the Apex Court has considered the scope and ambit of Article 21 of the Constitution and has held that right to privacy is implicit in the right to life and liberty guaranteed under Article 21 of the Constitution. In paragraph 28 of the said decision, the broad principles delineated by the Apex Court have been summed up. The first principle in so far as it relates to the right to privacy reads as follows: “28. We may now summarise the broad principles flowing from the above discussion: (1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone.” A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and O.P.(F.C.)355/2016. 11 education among other matters. None can publish anything concerning the above matters without his consent-whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.” 7. The question as to whether subjecting a person to medical examination would be an intrusion into the right of privacy of an individual was considered by the Supreme Court in Sharda v. Dharmpal ((2003) 4 SCC 493). A Bench of three Judges of the Apex Court has considered the question and has held that medical examination of an individual is permissible, subject to certain restrictions. Paragraph 81 of the said judgment, that sums up the position, is reproduced hereunder: “81. To sum up, our conclusions are: 1. A matrimonial court has the power to order a O.P.(F.C.)355/2016. 12 person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. However, the court should exercise such a power if the applicant has strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.” It is clear from the above that, the matrimonial court has the power to order a person to undergo medical test. But, such power has to be exercised only in cases where the applicant establishes a 'strong prima facie case' and there is sufficient material before the court. The consequence of refusing to subject to such medical examination is that the court would be entitled to draw an adverse inference. The counsel for the petitioner has placed reliance on two other decisions, M/s. Dashmesh Bhatta Company v. Vajinder Singh (AIR 2003 Punjab and Haryana 355) and Zahida Begum v. Mushtaque 13 O.P.(F.C.)355/2016. Ahamed (AIR 2006 Karnataka 10), in support of the above contention, where the principles laid down by the Apex Court have been followed. We refrain from referring to the said decisions in detail, since the dictum in the decision of the Apex Court has already been referred to. 8. In view of the above position of the law, it is necessary to examine whether in the present case the respondent has made out a strong prima facie case to justify the petitioner being submitted to medical examination by the Medical Board. 9. Ext.P8 is a copy of the petition, I.A. No. 1766 of 2016, filed by the respondent. What is stated in the affidavit in support of the petition is only that the contention taken by the petitioner being that the marriage had not been consummated, it was necessary for her to be examined by a Medical Board to ascertain whether she still remains a virgin. There is absolutely no averment as to how an enquiry on the O.P.(F.C.)355/2016. 14 said lines is relevant or necessary for determining the issues that arise for consideration in the cases that are being tried. Ext.P9 is a copy of the objections of the petitioner. She has stated therein the circumstances under which, according to her, fraud was perpetrated by the respondent. It has also been stated that, a similar petition for identical relief had been rejected by the Family Court in the very same proceedings, earlier. However, none of the above aspects have been adverted to or considered by the Family Court in the impugned order Ext.P1. The Family Court also has not found a strong prima facie case which was necessary to have been found before ordering examination of the petitioner by the Medical Board, as evident from the law on the point. Therefore, we do not find any justification for the direction that is contained in Ext.P1 that the petitioner be subjected to examination by a Medical Board to ascertain whether she continues to be a virgin. O.P.(F.C.)355/2016. 15 10. Apart from the above, we notice from Ext.P6 that the Family Court had rejected an identical prayer for subjecting the petitioner to medical examination made by the respondent herein, in I.A. No. 1918 of 2012. As already noticed by us, the respondent had sought for a review of the order initially and had thereafter challenged the same in O.P. (F.C.) No. 4557 of 2012. While disposing of the said Original Petition, a Division Bench of this Court has in paragraph 3 thereof rejected the challenge of the respondent to Ext.P6 in the following words: “..... At the same time, we are in agreement with the Family Court that the question whether the respondent had sexual relationship with the petitioner and whether out of that relationship, the respondent became pregnant is not relevant for deciding the cardinal issues in O.P. No. 159 of 2010. In that view of the matter, we sustain Ext.P3 and also Ext.P4. The original petition is dismissed as above.” O.P.(F.C.)355/2016. 16 Therefore, this Court has found that the question whether the respondent had sexual relationship with the petitioner was not relevant for deciding the issues in the Original Petition that was pending. The Family Court has omitted to take note of the above fact, despite the same being pleaded in the objections filed by the petitioner (Ext.P9) in paragraphs 6 to 8 thereof. 11. The counsel for the respondent has placed reliance on the decision reported in Dipanwita Roy v. Ronobroto Roy ((2015) 1 SCC 365), to contend that, an order directing a party to be subjected to a medical examination would not constitute an infringement of right to privacy under Article 21 of the Constitution. We notice that in the said case, the husband was seeking divorce alleging infidelity on the wife. The paternity of their child was a relevant matter, that had to be determined by a DNA test. It was found that the issue was relevant in the factual context of the said case. As O.P.(F.C.)355/2016. 17 already found above, the medical examination in the present case is unnecessary. For the foregoing reasons, it is held that Ext.P1 is unsustainable. This Original Petition is accordingly allowed. Ext. P1 is set aside. Sd/- K. SURENDRA MOHAN JUDGE Sd/MARY JOSEPH JUDGE sb