DEEP MUKERJEEversusSREYASHI BANERJEE

                   [2024] 4 S.C.R. 72 : 2024 INSC 274

                              Deep Mukerjee
                                    v.
                             Sreyashi Banerjee
                  (Civil Appeal No(s). 4722-4723 of 2024)
                                  05 April 2024
           [Vikram Nath and Prashant Kumar Mishra,* JJ.]

                            Issue for Consideration
       Matter pertains to subjecting the husband to undergo potentiality test.

                                    Headnotes
       Matrimonial laws – Matrimonial disputes – Medical tests –
       Potentiality test for husband – Divorce petition by the wife
       on the ground that the marriage between the parties was
       not consummated because of the husband’s impotency
       – Application by husband for subjecting the husband to
       undergo potentiality test and referring the wife for fertility
       test and psychological/mental health test for both the parties
       – Allowed by the trial court, however set aside by the High
       Court – Correctness:
       Held: When the husband is willing to undergo potentiality test, the
       High Court should have upheld the order of the trial court to that
       extent – Order passed by the trial court directing the husband to
       take the medical test to determine his potentiality upheld – Impugned
       order passed by the High Court modified to that extent – Hindu
       Marriage Act, 1955 – Evidence Act, 1872. [Para 9]

                                 Case Law Cited
             Sharda v. Dharmpal [2003] 3 SCR 106 : (2003) 4 SCC
             493 – referred to.

                                   List of Acts
       Hindu Marriage Act, 1955; Evidence Act, 1872; Code of Civil
       Procedure, 1908.

                                List of Keywords
       Divorce petition; Non-consummation of marriage; Impotency;
       Medical tests; Potential test; Fertility test; Psychological/mental
       health test.
* Author
[2024] 4 S.C.R.                                                           73

                    Deep Mukerjee v. Sreyashi Banerjee


                            Case Arising From
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.4722-4723 of
      2024
      From the Judgment and Order dated 28.11.2023 of the High Court of
      Judicature at Madras in CRPPD No. 2844 and 2848 of 2023
                         Appearances for Parties
      B Ragunath, Mrs. N C Kavitha, Vijay Kumar, Advs. for the Appellant.
      K. S. Mahadevan, Ms. Swati Bansal, Rangarajan .R, Aravind
      Gopinathan, Rajesh Kumar, Advs. for the Respondent.
                  Judgment / Order of the Supreme Court

                                 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 in I.A. Nos. 8 & 9 of
      2023 preferred by the appellant/husband in O.P. No. 2866 of 2021.
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


1    ‘Act,1955’
74                                                           [2024] 4 S.C.R.

                       Digital Supreme Court Reports


       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.
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 potentiality 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 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


2     ‘CPC’
[2024] 4 S.C.R.                                                           75

                    Deep Mukerjee v. Sreyashi Banerjee


     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 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.

     Headnotes prepared by: Nidhi Jain                   Result of the case:
                                                      Appeals partly allowed.