Deep Mukerjee vs Sreyashi Banerjee

2024 INSC 274 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s)._______ OF 2024 (Arising out of SLP(C) Nos. 4834-4835 of 2024)

DEEP MUKERJEE … APPELLANT

VERSUS

SREYASHI BANERJEE ... RESPONDENT

JUDGMENT

PRASHANT KUMAR MISHRA, J.

Leave granted.

2. Challenge in these appeals is to the common order dated

28.11.2023 passed by the High Court in Civil Revision Petition

Nos. 2844 and 2848 of 2023 allowing the revisions while

setting aside the order dated 27.06.2023 passed by the Trial

Court Signature Not Verified in I.A. Nos. 8 & 9 of 2023 preferred by the Digitally signed by Jayant Kumar Arora

appellant/husband in O.P. No. 2866 of 2021. Date: 2024.04.06 11:19:40 IST Reason:

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3. The parties were married on 23.07.2013 at Chennai and

thereafter they agreed to move to the United Kingdom where

they stayed together happily for a period of 7½ years. After

they returned, they stayed together in a residential property

belonging to the respondent/wife’s father. However, upon

disputes being cropped, they have separated in April, 2021 and

since then, it is alleged by the appellant/husband that the

respondent/wife neither joined his company nor responded to

any communication and/or messages of the appellant/husband.

4. The appellant/husband preferred application under Section

9 of the Hindu Marriage Act, 19551 before the Additional

Principal Family Court at Chennai, seeking restitution of

conjugal rights being OP No. 2441 of 2021 whereas the

respondent/wife subsequently preferred OP No. 2866 of 2021

for grant of decree of divorce under Section 13(1) (ia) of the

Act, 1955 on the ground that the marriage between the parties

has not consummated because of the appellant/husband’s

impotency.

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‘Act,1955’ 3

5. In the above factual background, the appellant/husband

moved I.A. Nos. 8 & 9 of 2023 under Section 45 of the Indian

Evidence Act read with Section 151 of the Code of Civil

Procedure, 19082 for subjecting the appellant/husband to

undergo potential test and at the same time referring the

respondent/wife for fertility test and psychological/mental

health test for both the parties. Vide order dated 27.06.2023,

the Trial Court allowed the above interim applications on the

condition that a competent medical board shall be constituted

by the Dean, Rajiv Gandhi Government General Hospital,

Chennai to conduct the subject tests for both the parties as

prayed for in the interim applications and the report of the

medical board be sent to the Court through the advocate

Commissioner in a sealed cover. Both the parties were

directed not to reveal the result of the tests to any third party

and maintain complete secrecy.

6. The Trial Court’s order dated 27.06.2023 was challenged

by the respondent/wife before the High Court by way of two

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separate revisions which have been allowed by the High Court

under the impugned order.

7. In the course of arguments in this Court, learned counsel

for the appellant/husband submitted that when the

appellant/husband is willing to undergo potentiality test, there

is no reason why the High Court should set aside the entire

order. The learned counsel for the appellant would refer to the

decision of this Court in the case of “Sharda vs. Dharmpal”

(2003) 4 SCC 493. Per contra, the learned counsel for the

respondent/wife would submit that when the respondent/wife

is not willing to undergo any test be it fertility test or mental

health check-up, she cannot be compelled to undergo such

tests.

8. While allowing the revision petitions preferred by the

respondent/wife the High Court has not assigned any cogent

reason as to why the appellant/husband cannot be sent for

potentiality test. Instead of dwelling on the contentions of the

parties qua the merits of the interim applications decided by

the Trial Court, the High Court focused on the conduct of the 5

parties which was not at all germane for deciding the issue as

to the validity of the order passed by the Trial court.

9. 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. Accordingly, we allow the

present appeals in part maintaining the order passed by the

Trial Court dated 27.06.2023 insofar as it directs the

appellant/husband to take the medical test to determine his

potentiality. Let the test be conducted in the manner indicated

by the Trial Court within a period of four weeks from today and

the report be submitted within two weeks thereafter.

Impugned order passed by the High Court stands modified to

the above extent only.

………………………………………J. (VIKRAM NATH)

………………………………………J. (PRASHANT KUMAR MISHRA) APRIL 5, 2024 NEW DELHI.