'Wife alleges marriage not consummated,' SC allows man's plea to undergo potency test

New Delhi: The Supreme Court has allowed a man to undergo a medical test as his wife sought divorce more than seven-and-half-year of their wedding alleging that their marriage could not be consummated owing to his impotency.

A bench of Justices Vikram Nath and Prashant Kumar Mishra modified the Madras High Court only to the extent that the man would take the test in view of his willingness.

As the wife sought the divorce, the man filed an application for potency test for himself and fertility and psychological tests for her.

The trial court allowed the man's plea. The High Court, however, set aside the trial court's order.

"While allowing the revision petitions preferred by the wife, the High Court has not assigned any cogent reason as to why the husband cannot be sent for potentiality test," the bench said.

Before the top court, the wife's counsel said when she is not willing to undergo any test be it fertility test or mental health check-up, she cannot be compelled to undergo such tests.

In its April 5 order, the top court found, instead of dwelling on the contentions, the High Court focused on the conduct of the parties which was not at all germane for deciding the issue as to the validity of the order passed by the trial court.

"Considering the fact situation of the present case, we are satisfied that when the appellant/husband is willing to undergo potentiality test, the High Court should have upheld the order of the trial court to that extent," the bench said.

The court said let the test be conducted in the manner indicated by the trial court within a period of four weeks and the report be submitted within two weeks thereafter.

In the case, the couple, after their marriage on July 23, 2013 at Chennai, went to the United Kingdom where they stayed together happily for a period of seven-and-half years.

Upon their return, disputes arose and they separated in April, 2021.

The husband sought restitution of marriage by filing an application under Section 9 of the Hindu Marriage Act, 1955 before the Family Court at Chennai.

Subsequently, the wife sought divorce by filing an application under Section 13(1) (ia) of the Act, 1955 on the ground that the marriage between the parties has not consummated because of the husband’s impotency.

The husband filed an application expressing willingness to undergo potential test. He also sought a direction for referring the wife for fertility test and psychological and mental health test for both the parties.

Allowing the applications, the trial court ordered that a competent medical board should be set up by the Dean, Rajiv Gandhi Government General Hospital, Chennai to conduct the subject tests for both the parties and the report of the medical board be sent to the court through the advocate commissioner in a sealed cover.