IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.24753 OF 2019 (GM-FC) BETWEEN:
HAMSA S W/O SHAILENDRA KUMAR B D/O SATYAKUMAR AGED ABOUT 32 YEARS HAMSA NIVASA, 7TH CROSS 2ND STAGE, POST OFFICE ROAD SOMESHWARA EXTENSION DODDABALLAPUR BENGALURU RURAL – 561 203.
… PETITIONER (BY SRI. B.K. MANJUNATH, ADVOCATE AND SRI. NAVEEN KUMAR M, ADVOCATE) AND:
SHAILENDRA KUMAR B S/O A. BASAVARAJU AGED ABOUT 37 YEARS NO.330, 4TH ‘C’ CROSS BANASHANKARI 3RD STAGE 3RD PHASE, 5TH BLOCK BENGALURU – 560 085.
(BY SRI. B.R. DEEPAK, ADVOCATE) … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED PRINCIPAL JUDGE, FAMILY COURT AT BENGALURU ON I.A.NO.8 IN M.C.NO.5388/2014 VIDE ANNEXURE- P DATED 16.02.2019 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. B. K. Manjunath and Sri. Naveen Kumar M., learned counsel for the petitioner.
Sri. B. R. Deepak, learned counsel for the respondent.
The petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
2. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 16.02.2019 passed by the Family Court by which the application filed by the petitioner under Order 26 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 to refer the respondent to medical examination has been allowed.
3. The facts giving rise to filing of the writ petition briefly stated are that admittedly, the respondent has filed the petition seeking dissolution of marriage on the ground of mental cruelty. It is averred in the petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) that the petitioner used abusive language and used to insult the relatives of the respondent including the respondent during her stay in the matrimonial home. During the course of her cross-examination, the petitioner stated that she is a virgin. Thereafter, an application under Order 26 Rule 10 read with Section 151 of the Code was filed to refer the petitioner to verginity test. The aforesaid application has been allowed by the impugned order dated 16.02.2019.
4. Learned counsel for the petitioner submitted that the application in question at the instance of the respondent was not maintainable and previously the respondent had filed an application requiring the petitioner to undergo frigidity test. The petitioner thereupon underwent the frigidity test and thereafter this application was filed. Learned Family Court ought to have appreciated that the aforesaid issue was not at all germane for the controversy involved in the petition.
5. On the other hand, learned counsel for the respondent supported the order passed by the trial Court. It is further submitted that since the petitioner in the cross-examination has asserted that she is a virgin. Therefore, the respondent has filed the application to refer the petitioner to Virginity Medical Examination. It is also submitted that on the previous occasion, in the order dated 18.08.2018, the word “virginity” was omitted. Therefore, the respondent has filed an application, which was rightly been allowed.
6. I have considered the submissions made by learned counsel for the parties and have perused the pleadings. The respondent has filed the petition under Section 13 of the Act seeking dissolution of marriage on the ground of mental cruelty. Admittedly, it has been averred in the petition that the petitioner used abusive language as well as insulted the relatives of the respondent during her stay in the matrimonial home. In the aforesaid petition, either the issue with regard to the impotency of the respondent or virginity of the petitioner has not been pleaded. It is trite law that the evidence adduced by the parties has to be looked into in the light of the pleadings of the parties and in case there are no pleadings, the evidence cannot be looked into and has to be discarded. The family Court ought to have appreciated that the respondent had filed the petition seeking dissolution of marriage and the burden was on him to prove the fact. However, the aforesaid aspects of the matter had totally escaped the consideration of the Family Court while passing the impugned order. The impugned order dated 16.02.2019 in M.C.No.5388/2014 suffers from jurisdictional infirmity as well as error apparent on the face of the record. It is accordingly quashed and set aside.
7. Needless to state that the Family Court shall decide the matter expeditiously in accordance with law in the light of the pleadings of the parties and in view of the issues framed therein.
Accordingly, the petition is disposed of.
Sd/- JUDGE Mds/-