Utt HC | Wife not eligible for medical examination of whether she can conceive or not during Divorce proceedings; Court allows appeal

Uttaranchal High Court: A Division Bench of Ravi Malimath and Narayan Singh Dhanik, JJ., allowed an appeal which was filed aggrieved by the order passed by the trial court in ordering the medical examination of the wife.

The respondent-wife was alleged to have committed various acts of cruelty; that she had also deserted her husband, therefore, he filed the petition before the Family Court under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. During the pendency of the proceedings, on an application made by the husband, the impugned order was passed by the trial court directing the medical examination of the wife to ascertain whether she was in a position to conceive or not. Thus, the present appeal.

The Counsel for the appellant wife, Harshpal Sekhon contended that wife undergoing a medical test to ascertain whether she can conceive or not is something unheard of and further whether she can conceive or not is irrelevant to the facts and circumstances of the case.

The Court while allowing the appeal quashed the Family Court’s Order and  stated that husband had sought for a decree of divorce on the grounds under Sections 13 (ia) and 13 (ib) of the Hindu Marriage Act, 1955. Section 13 (ia) is with regard to cruelty and Section 13 (ib) is with regard to desertion. Therefore, the husband would have to establish these two facts before the court in order to seek divorce on these grounds. The ability of the wife to conceive or not has no relevance or any nexus with sub-section (ia) or (ib) of Section 13 of the Hindu Marriage Act. Her ability to conceive or not is irrelevant in the present proceedings. [Rashmi Gupta v. Yogesh Babu, 2020 SCC OnLine Utt 339 , decided on 01-07-2020]

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