# Upasana Kumari v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 1629
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-24
- **Case number:** Criminal Misc. Writ Petition No. 27 of 2024
- **Bench:** Mahesh Chandra Tripathi, Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upasana-kumari-v-state-of-u-p-ors-51571
- **Pages:** 10

## Headnote

Criminal Law -Constitution of India,1950 -
Article 226 - medical examination during
investigation - offences under Sections 498A,
323, 354, 504, 420 IPC and Sections 3/4 D.P.
Act - allegation of non-consummation of
marriage and impotency of husband - FIR
lodged by wife - medical examination of
husband
conducted
-
Medical
Inquiry
Committee advising gynecology examination of
wife - objection by petitioner - sexual
intercourse involves both husband and wife -
comprehensive report regarding potency test
cannot
be
prepared
without
medical
examination
of
petitioner
-
investigation
includes all proceedings for collection of
evidence under Section 2(h) Cr.P.C. - no
illegality or impropriety in medical advice - no
interference required .

W.P. dismissed. (E-9)

Cases Cited:

## Text

3 All. Upasana Kumari Vs. State of U.P. & Ors.
1629
acquired by the present appellant being
gangster. It also appears that the appellant
was having enough source of income from
which he had procured the vehicle and even
the said vehicle was procured by him much
prior to the registration of criminal cases
and imposition of provisions of Act against
him, which was invoked in the year 2021
and the impugned order of attachment was
passed in mechanical manner without
application of mind and was arbitrary. The
enquiry under Section 16 of the Act was
not performed in accordance with the
proceedings and object of the Act and the
provisions of Sections 14, 15 & 17 of the
Act were also not followed in true spirit.
Hence, the entire proceeding initiated in
pursuance thereof is vitiated.

16. In view of the discussions made
above, in my view the impugned judgment
and order dated 5.11.2022 passed by
Special Judge Gangster Act / Additional
Sessions Judge, Court No. 4, Aligarh in
Criminal Misc. Case No. 330 of 2022,
which is a reference made to the court
under Section 15(1) of U.P. Gangsters and
Anti-Social Activities (Prevention) Act, the
orders of the District Magistrate, Aligarh
dated 13.8.2021 seizing / attaching the
vehicle of appellant under Section 14 of the
Act as well as order dated 23.5.2022 are
liable to be quashed and the appeal is liable
to be allowed. Accordingly the aforesaid
orders are quashed and the appeal is
allowed. The property vehicle 'Scorpio'
attached in the matter shall be released
from attachment forthwith.

17. Copy of this judgment be
transmitted
to
the
Court
/
District
Magistrate
concerned
for
necessary
compliance.
----------
(2024) 3 ILRA 1629
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Criminal Misc. Writ Petition No. 27 of 2024

Upasana Kumari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gambhir Singh, Sri Amit Kumar Verma, Sri
Amit Kumar Verma

Counsel for the Respondents:
G.A.

Criminal Law -Constitution of India,1950 -
Article 226 - medical examination during
investigation - offences under Sections 498A,
323, 354, 504, 420 IPC and Sections 3/4 D.P.
Act - allegation of non-consummation of
marriage and impotency of husband - FIR
lodged by wife - medical examination of
husband
conducted
-
Medical
Inquiry
Committee advising gynecology examination of
wife - objection by petitioner - sexual
intercourse involves both husband and wife -
comprehensive report regarding potency test
cannot
be
prepared
without
medical
examination
of
petitioner
-
investigation
includes all proceedings for collection of
evidence under Section 2(h) Cr.P.C. - no
illegality or impropriety in medical advice - no
interference required .

W.P. dismissed. (E-9)

Cases Cited:

1. Ameet Bhuvan v. Smt. Swati Bhaskar, First
Appeal No. 111 of 2014, decided on 10.07.2017
(Uttarakhand High Court)

2. Jagdish Lal v. Smt. Shyama Madan and
others, AIR 1966 All 150
1630 INDIAN LAW REPORTS ALLAHABAD SERIES
3. T. Rangaswami v. T. Aravindammal, AIR
1957 Mad 243

4. Praveen Mehta v. Inderjit Mehta, AIR 2002
SC 2582

5. Sharda v. Dharmpal, (2003) 4 SCC 493

6. Yuvraj Digvijay Sinhji v. Yuvrani Pratap
Kumari, AIR 1970 SC 137

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J. & Hon'ble Gajendra Kumar, J.)

1. Heard Sri Gambhir Singh, learned
counsel for the petitioner and Mrs. Manju
Thakur, learned A.G.A.-I for the State
respondents.

2. This writ petition is preferred under
Article 226 of Constitution of India interalia with following reliefs:-

"(i). Issue a writ order or
direction in the nature of certiorari to
quash
the
impugned
orders
dated
07.10.2023 and 16.12.2023 passed by
respondent no.4, whereby the petitioner/
victim has been ordered to undergone
medical examination in respect of case
crime no. 34 of 2023, Under Section 498A,
323, 354, 504, 420 IPC and 3/4 D.P. Act,
Police Station- Mahila Thana, District
Moradabad.

(ii) Issue a writ order or direction
in the nature of mandamus commanding the
respondent nos. 2 & 3 to take necessary
action for conducting potency test/medical
examination
of
respondent
no.5
in
K.G.M.U. Lucknow as advised by the board
of
the
doctors
of
District
Hospital
Moradabad in place of L.L.R.M. Medical
College, Meerut.

(iii) Issue a writ order or
direction in the nature of mandamus
commanding the respondent nos. 2 & 3 to
conduct fair and impartial investigation of
case crime no. 34 of 2023, Under Section
498A, 323, 354, 504, 420 IPC and 3/4 D.P.
Act, Police Station- Mahila Thana, District
Moradabad within stipulated period."

3. The brief facts as per prosecution
case are that the marriage of the petitioner
was solemnized with 5th respondent
(husband) on 26.01.2023 with Hindu rites
and rituals but the marriage could not be
consummated on account of impotency of
her husband. Consequently, a written report
dated 01.07.2023 was submitted by the
petitioner at Police Station Mahila Thana,
District Moradabad, alleging that the
respondent nos.5 to 8 had inflicted cruelty
on her and concealed the fact of impotency
of her husband by birth with the petitioner.
The aforesaid case was registered as Case
Crime No.34 of 2023 under Sections 498A,
323, 354, 504, 420 IPC and 3/4 D.P. Act,
Police Station Mahila Thana, District
Moradabad.

4. Learned counsel for the petitioner
submits that the petitioner herself is a
victim of offence under Sections 498A,
323, 354, 504, 420 IPC and 3/4 D.P. Act
and therefore, there was no reason to advise
the
petitioner
to
undergo
medical
examination (Gynecology Examination).
She herself had raised a question of
impotency of her husband/accused and
demanded his potency test. Further, it is
contended that her husband was medically
examined by the Doctor of T.M.U.
Hospital, Moradabad on her request and
according to the supplementary report of
the doctor dated 01.08.2023, petitioner's
husband
was
found
suffering
from
phimosis disease, which is the main cause
for impotency.
3 All. Upasana Kumari Vs. State of U.P. & Ors.
1631

5. It is also contended that her
husband was well aware that he was not in
a position to perform sexual intercourse
and in fact, he is an impotent person.
Without divulging the said fact, the
marriage has been solemnized. It is also
alleged that during the investigation, in
most arbitrary manner, the Investigating
Officer had deleted Sections 354 and 420
I.P.C. as the case had been made out against
the accused persons under Sections 354 and
420 IPC. Therefore, it is pressed that the
impugned orders are illegal, arbitrary and
against the provisions of law, wherein the
respondents had no authority to compel the
petitioner
to
undergo
the
medical
examination. In case of marriage, physical
relationship or mental relationship is a
condition, which is persistent and regular to
make the consummation of marriage
essential. Non-consummation of marriage
was the sore point of the wife (petitioner)
due to which she lodged the FIR against the
respondent nos.5 to 8. Moreover, once the
petitioner alleged that her husband is
impotent and cannot cohabit, then in such
situation the petitioner cannot be asked to
undergo medical examination. Hence, the
impugned orders are illegal, arbitrary and
the same are liable to be set aside.

6. Per contra, Mrs. Manju Thakur,
learned A.G.A.-I has vehemently opposed
the writ petition and submitted that the
impugned orders (medical advises) were
passed by the authority concerned after
considering all the aspects of the matter.
Moreover, once the petitioner's husband
had raised an objection that the petitioner
wife refused to cooperate with him in
sexual intercourse, then in such situation
one sided version cannot be accepted and
the petitioner cannot refuse to get herself
medically examined. Moreover, in the
instant case, on the instance of the
petitioner, once the husband had already
undergone the medical examination then
the refusal by the petitioner for medical
examination is in fact interference in the
ongoing investigation in the matter. In
support of her submission, she has placed
reliance on the judgment of High Court of
Uttarakhand at Nainital in Ameet Bhuvan
vs. Smt. Bhaskar1. She lastly submits that
said disputed fact cannot be pressed under
Article 226 of Constitution of India. The
writ petition is devoid of merit and the
same is liable to be dismissed.

7. Heard rival submissions and
perused the record.

8. From perusal of the pleadings as
well as Annexures available on record, it
transpires that initially, the petitioner
lodged an FIR against her husband as well
as other in-laws (respondent nos.5 to 8)
with the allegation of mental and physical
cruelty
regarding
non-fulfillment
of
demand of dowry. The petitioner in
addition to physical cruelty had also
alleged that her husband was in fact
impotent since birth and same had been
concealed by the private respondents. On
account of his impotency, the marriage
could not have been consummated. In
pursuance of the FIR the investigation was
carried out. Even though, initially the
charge sheet was forwarded to the Circle
Officer concerned, to which the objection
was raised by the petitioner that the
respondents had not ensured to get the
potency test of her husband and in
collusion
with
the
respondents,
the
investigating officer had forwarded the
chargesheet.

9. It further reveals that on account of
the protest of the petitioner, further
investigation was carried out by the
1632 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned police authority in pursuance of
which the medical examination of the
petitioner's husband was conducted by the
Medical
Board
at
District
Hospital
Moradabad. Thereafter, the Board advised
for reference to L.L.R.M. Medical College,
Meerut or K.G.M.U. Medical College,
Lucknow vide it's report dated 20.09.2023
for
further
specialised
tests/medical
examination i.e. Neurologist, Urologist,
Psychiatrist, Endocologist, which can only
be carried out at the super-speciality
hospital and the same is not available at
District
Moradabad.
Meanwhile,
the
petitioner approached this Court by means
of Criminal Misc. Writ Petition No.12827
of 2023 (Upasna Kumari Vs. State of U.P.
and 6 others) with a prayer for fair,
impartial and proper investigation in
respect of the aforesaid Case Crime,
wherein, a Division Bench of this Court
vide order dated 20.09.2023 had proceeded
to dispose of the writ petition in the light of
judgment in Ajay Kumar Pandey vs.
State of UP and others2, by granting
liberty to the petitioner to invoke the power
of the Magistrate concern under Section
156 (3) Cr.P.C.

10. Pursuant to the aforesaid order,
the petitioner moved another application
under Section 156 (3) Cr.P.C. before the
concerned Magistrate. After hearing and
perusal of the record, the Civil Judge
(Junior Division), FTC, Moradabad (Crime
Against Women) had asked a report from
the investigating officer alognwith the case
diary and passed an order dated 21.10.2023
with following effect:-

"सुना व अवलोकन वकया।

प्रश्नगि मामले में- वववेचक के मौवखक व वलवखि
िथ्ज्य व केस डायरी के अवलोकन से पाया जािा है वक यावचका
द्वारा प्राथानापत्र में वजन िथ्ज्यों को ववणाि करिे हुए वववेचना कराये
जाने का अनुरोि वकया गया है उन सभी िथ्ज्यों को ध्यान में रखिे हुए
वववेचक द्वारा वववेचना अग्रसाररि की जा रही है। ऐसी वस्थवि में
वववेचक को वववेचना में अन्य कोई आिेर्श िेना वववेचना में हस्िक्षेप
वकया जाना होगा। अिः अन्य कोई आिेर्श विया जाने का कोई
औवचत्य नहीं है। प्राथानापत्र िद्नुसार वनस्िाररि। वववेचक को वनिेवर्शि
वकया जािा है वक वह वनयमानुसार सभी िथ्ज्यों को ध्यान में रखिे
हुए वववेचना सुवनविि करे।"

11.

The
Chairman,
Medical
Committee,
LLRM
Medical
College
Meerut made a communication to the
Principal LLRM Medical College, Meerut
on
07.10.2023
that
Mudit
Kumar
(petitioner's husband) may be directed to
be present on 11.10.2023 at 01:00 p.m.
before the surgery department as per advice
given by Dr. Shivendu of Endocology
Department
and
Dr.
Tarun
Pal
of
Psychiatric Department. In this backdrop,
the members of the Medical Committee
had unanimously resolved that as the
complainant had made a complaint against
her husband regarding his impotency and
capacity
to
copulate,
therefore,
the
petitioner may also be medically examined
by the Gynecologist and CMO Moradabad
and a report be submitted to the Committee
in sealed cover. The petitioner is aggrieved
with
the
said
advise,
specially
for
undergoing medical examination by the
Gynecologist and the application was
moved with the prayer that she does not
want her medical/gynecology examination
without the order by the Court.

12. In this backdrop, the Medical
Committee again convened the meeting on
13.12.2023 and all the members of the said
Committee were unanimous that for the
sexual intercourse, the husband and wife
both are actively involved. Therefore, the
Committee
opined
that
the
petitioner/objector must go for gynecology
examination by the Gynecologist so that it
may be ensured that whether her genital
organs are normal or there is any
3 All. Upasana Kumari Vs. State of U.P. & Ors.
1633
malfunctioning specially for the purpose of
active
sexual
intercourse.
The
said
observation was made by the Committee,
once the petitioner's husband had made an
objection/statement before the Committee
that his wife does not cooperate in sexual
intercourse. Therefore, the communication
was made to the petitioner by the
Committee
on
16.12.2023,
which
is
impugned in the present matter. Being
aggrieved by both the communications
dated 7.10.2023 and 16.12.2023, the instant
writ petition had been filed. It is apparent
that no order had been passed by the
authority rather the petitioner had been
directed/advised to be medically examined
by the Gynecologist so that comprehensive
report regarding the potency test of the
husband of the petitioner could be prepared
and
forwarded
to
the
concerned
investigation officer.

13. The main plank of the argument
of the petitioner's counsel is that the
petitioner is the victim in this case and she
had
levelled
serious
allegation
of
impotency against her husband. Therefore,
her
medical
examination
by
the
gynecologist is unwarranted and cannot be
part of the investigation, said argument was
resisted by learned AGA-I on the ground
that at the initial stage of investigation, at
the promptness of the petitioner, even
though the potency test of her husband had
been carried but the proper investigation
could not be ensured unless the petitioner is
also
medically
examined
by
the
gynecologist as for the sexual intercourse
the bodies of both the parties are involved,
therefore, she also needs to be medically
examined.

14. Impotence is defined as lack of
ability to perform sexual act and sterility is
defined as lack of ability to procreate
children. Questions of impotence and
sterility arise when divorce is sought (a)
because, marriage cannot be consummated
(i.e., one of the parties is incapable of
complete
sexual
intercourse),
(b)
if
incapacity for consummation cannot be
surgically remedied, or, the defective party
is unwilling to submit to a surgical
operation; or (c) if the incapacity existed
before marriage. Impotence is attributed to
injury to head, neck, or loins. Potence in
case of males means power of erection of
the male organ ''plus'' discharge of healthy
semen containing living spermatozoa and
in the case of females means (1)
development of external and internal
genitals
and
(2)
ovulation
and
menstruation.

15. Causes of impotence: (*Apply to
males only. --*Apply to females only; those
unmarked, apply to bothsexes):-

1.
Organic:
1.
''Nervous
Lesions*'': Diseases of, or injury to, brain
or cord. 2. ''Malformation or absence of
parts* male organ may be absent, nondeveloped, ill-developed, or two or more in
number: adherent to scrotum or abdomen;
fibrous or cartilaginous; hypospadias;
congenital phimosis, anorchidisni, cryptorchidism; diseases of or accidents to or
operations on the male organ, testicles or
ducts (perinaeum).

*Atersia or narrowness of vulva,
absence of uterus, tough hymen or vagina.
(Though according to law, a boy under 14
is impotent, in fact, he is not always so).
Also -- Obesity, 3. ''Inflammations or
Cicatricial'' contractions*. ''Vaginismus''.
Krauroses vulvae; internal piles, tight
stricture. 4. Tumorous*:--Elephantiasis;
''hernia'', big hydrocele.

"Psychial*
1.
Absence
of
voluptuous thoughts. 2. ''Repugnance''
1634 INDIAN LAW REPORTS ALLAHABAD SERIES
towards individuals, ''fear'', ''timidity'',
''excessive passion''. (For this reason, a
man may be potent towards one woman
and impotent towards another.

Atonic.*
(Therefore,
often
temporary impotence). 1. ''From general
diseases'' and ''conditions'': -- Old age, too
frequent
coitus,
wasting
diseases
(diabetes); anaemia; uraemia, cholaema,
rhumatism,
diptheria,
Heart
diseases,
chronic nephrities, acute fevers, parotitis.
2, ''From Over-indulgence in drugs'': lead,
potassium Iodide, opium, cannabis indica
and other narcotics; alcohol, tobacco,
thyroidin. 3. ''From chronic irritation of
genital passages -- due to gonorrhoea,
stricture, masturbation vaginismus.

16. This information can be gathered
from standard text-books, English and
Indian, on the subject like Glaister''s
Medical Jurisprudence and Toxicology
(1953), 9th Edn., Chapter XII, p. 358 ff;
Taylor on Sexual Disorders (2nd Edn,),
Chapter VIII, page 98ff, (atonic); Organic
impotence, Chapter IX, p. 105 ff; Forel''s
Sexual question and Psychic Impotence,
pp. 85, 219; Mody''s Medical Jurisprudence
and Toxicology (12th Edn.), Chapter XIII,
p. 284ff; Ray''s Medical Jurisprudence and
Treatment of poisoning (6th Edn.) page
23lff; Kanmth''s Medical Jurisprudence.
(MLJ publication.)

17. So far as the legal position
regarding the requirement of potency test,
in cases where allegation has been made by
the wife to the effect that marriage is not
properly consummated and the husband is
impotent
and
was
incapable
of
consummating the marriage on account of
his complete and total impotency is
concerned, it may be pertinent to refer the
judgment passed by this Court in the case
of Jagdish Lal vs. Smt. Shyama Madan
And Ors.3 in which it has been held as
under :-

"7. Impotency means incapacity
for accomplishing the act of sexual
intercourse and by sexual intercourse, in
this context, is meant not an incipient,
partial or imperfect but a normal and
complete coitus. Impotency is to be
distinguished from sterility which may in
some cases accompany impotency but is
not necessarily associated with it, the two
expressions denoting lack of two different
powers. A person may be incapable of
accomplishing the sexual act and yet be
capable of procreating and conversely too,
a person may be incapable or procreating
and yet be capable of accomplishing the
sexual act. The cause of impotency may be
in the malformation or structural defect in
the parts; in the functions, resulting in
imperfect
erection
or
premature
ejaculation; in diseases, whether local or
general or in the mind, manifesting itself a
repugnance for the sexual act, fear, lack of
confidence etc. It may also happen that a
person is capable of having sexual
intercourse but incapable of performing it
with a particular individual, and in such a
case the person must be regarded as
impotent in relation to that particular
individual regardless of his potency in
general. These matters are too well settled
to need reference to any medico-legal or
legal authorities."

18. In the aforesaid case, the medical
examinations of both the parties were
conducted and considered.

19. In T. Rangaswami vs. T.
Aravindammal4 it was observed:-

"21. In regard to proof of
impotency, the rules of evidence are not
3 All. Upasana Kumari Vs. State of U.P. & Ors.
1635
different in the case of impotency than
elsewhere. Impotency that is physical unfitness for consummation, must be proved or
there must be facts from which this can be
inferred. The proof must be, as used to be
expressed in the Ecdeciastical courts in
England not suspicio probablis but has to
be Vehetnens proesumptio.

22.
There
is
no
minimum
standard
of
proof
necessary.
Even"
uncorroborated testimony of the petitioner
is sufficient if it can be believed. In cases of
this nature, corrboration can only be
obtained from the evidence ''of the other
party to the marriage. u/s 120 of the
Evidence Act, the other party to the
marriage is a competent witness.

23. The conduct of the parties
subsequent to the marriage would be
important. Did they peak lot the impotency
to anybody? Was it mentioned to any friend
or relation or to their parents? If, not, why
not? Would it be natural not to do so? Or
was there no opportunity? It would not be
natural for everybody to speak these
matters to another. A reserved or shy or a
reticent person would not. On the other
hand, other types almost certainly would.
Whether the parties to the case fall within
the one class or the other, it is for the trial,
judge to discover: (AIR 1943 Nag 185) (L).

24. Impotency may be established
by medical examination of the parties. The
doctor who examined either party or both
the parties, may be examined as witness.

Where the respondent relies on a
doctor''s certificate that ho was able to have
sexual intercourse and was potent that day,
the certificate must be strictly proved by
examining the doctor who issued it.
Certificates like these, do not prove
themselves.
The
doctor
giving
the
certificate has to state what tests he carried
out to arrive at his conclusions and must
stand cross-examination and convince the
Court that his conclusion about the potency
is correct."

20. In the case of Ameet Bhuvan vs.
Smt. Swati Bhaskar (supra) the question
of impotency was also involved, wherein it
has been observed and held as under : -

"14. The Hon'ble Apex Court in
its judgment rendered in AIR 2002 SC
2582, "Praveen Mehta v. Inderjit Mehta"
although deals with a situation where a
wife refuses to cooperate with her husband
in sexual intercourse and also refuses to get
herself medically examined or undergo
medical treatment and that she has abused
and misbehaved with the husband and
friends
and
other
relatives,
thereby
depriving of the husband to normal
cohabitation, this will amount to be mental
cruelty.

15. In the instant case, it is the
husband, who despite of the court's order
avoid to undergo the medical test, this
avoidance to undergo the medical test will
amount to the refusal for medical test. Such
a refusal will amount to be a mental cruelty.
In the said judgment while dealing with the
concept of mental cruelty it has been held
that it is a state of mind and feeling, thus
the cruelty for the purpose of Section 13 (1)
(i-a) is to be taken as a behaviour towards
the spouse and one another. In the same
judgment, Hon'ble Apex Court has held that
a wife of non cooperative attitude to have
sex and refusing for a medical treatment,
abusing and misbehaving with the husband
even with his friends would be a mental
cruelty. Para 19, 20 and 21 of the said
judgment are reproduced herein below:-

"19. Clause (ia) of sub-Section
(1)
of
Section
13
of
the Act
is
comprehensive enough to include cases of
physical as also mental cruelty. It was
formerly thought that actual physical harm
1636 INDIAN LAW REPORTS ALLAHABAD SERIES
or reasonable apprehension of it was the
prime ingredient of this matrimonial
offence. That doctrine is now repudiated
and the modern view has been that mental
cruelty can cause even more grievous
injury and create in the mind of the injured
spouse reasonable apprehension that if will
be harmful or unsafe to live with the other
party. The principle that cruelty may be
inferred
from
the
whole
facts
and
matrimonial relations of the parties and
interaction in their daily life disclosed by
the evidence is of greater cogency in cases
falling under the head of mental cruelty.
Thus mental cruelty has to be established
from the facts (Mulla Hindu Law, 17th
Edition, Volume II, page 91 ).

20. In the case in hand the
foundation of the case of 'cruelty' as a
matrimonial offence is based on the
allegations made by the husband that right
from the day one after marriage the wife
was not prepared to cooperate with him in
having sexual intercourse on account of
which
the
marriage
could
not
be
consummated.

When the husband offered to
have the wife treated medically she refused.
As the condition of her health deteriorated
she became irritating and unreasonable in
her behavior towards the husband. She
misbehaved with his friends and relations.
She even abused him, scolded him and
caught hold of his shirt collar in presence
of elderly persons like Shri S.K. Jain. This
Court in the case of Dr. N.G. Dastane v.
Mrs. S. Dastana (supra), observed : "Sex
plays an important role in marital life and
cannot be separated from other factors
which lend to matrimony a sense of fruition
and fulfillment".

21. Cruelty for the purpose of
Section 13 (1) (ia) is to be taken as a
behavior by one spouse towards the other
which causes reasonable apprehension in
the mind of the latter that it is not safe for
him or her to continue the matrimonial
relationship with the other. Mental cruelty
is a state of mind and feeling with one of
the spouses due to the behavior or
behavioral pattern by the other. Unlike the
case of physical cruelty the mental cruelty
is difficult to establish by direct evidence. It
is necessarily a matter of inference to be
drawn from the facts and circumstances of
the
case.
A
feeling
of
anguish,
disappointment and frustration in one
spouse caused by the conduct of the other
can only be appreciated on assessing the
attending facts and circumstances in which
the two partners of matrimonial life have
been living. The inference has to be drawn
from the attending facts and circumstances
taken cumulatively. In case of mental
cruelty it will not be a correct approach to
take an instance of misbehavior in isolation
and then pose the question whether such
behavior is sufficient by itself to cause
mental cruelty. The approach should be to
take the cumulative effect of the facts and
circumstances emerging from the evidence
on record and then draw a fair inference
whether the petitioner in the divorce
petition has been subjected to mental
cruelty due to conduct of the other.

21. In the cases of marriage,
physical relationship or mental relationship
is a condition which is persistent and
regular to make the consummation of
marriage
essential.
The
practical
incapability has to be seen by the court
below although when such type of issue
crops up in litigation, there is no yardstick
provided, which could determine the
standard of proof to determine the potency
or impotency. Thus issue has to be settled
on the basis of incorporated testimony or
medical inputs and by the conduct of the
parties which has to be pleaded in the
3 All. Upasana Kumari Vs. State of U.P. & Ors.
1637
absence of their being in denial of the said
fact.
24. In a judgment rendered by Hon'ble
Rajasthan High Court at Jaipur in the case
of Renuka vs. Rajendra Hada in its para 12
and 13 has held as under :

"12.
The
questions
for
consideration in the instant appeal are:-

(i) Whether a matrimonial court
had power to order appellant to undergo
medical test?

(ii) If despite the order of the
Court, the appellant refused to submit
herself to medical examination whether the
court could draw adverse inference against
her?

(iii) Whether the respondent has
succeeded in satisfactorily establishing that
the appellant was impotent at the time of
marriage and at the time of filing of the
petition?

13. We find answer of these
questions in two decisions rendered by the
Hon'ble Supreme Court in Sharda v.
Dharmpal, (2003) 4 SCC 493, wherein it
was indicated that if despite an order
passed by the Court a person refuses to
submit
himself
to
such
medical
examination, a strong case for drawing an
adverse would be made out. Section 114 of
the Evidence Act also enables a Court to
draw an adverse inference if the party does
not produce the relevant evidence in the
power and possession. The conclusion
drawn by the Apex Court are as under :-

(i) A matrimonial Court has the
power to order a person to undergo medical
test.

(ii) Passing of such an order by
the Court would not be in violation of the
right to personal liberty under Article 21 of
the Constitution.

(iii) However, the Court should
exercise such a power if the applicant has a
strong prima facie case and there is
sufficient material before the Court. If
despite the order of the Court, the
respondent refuses to submit himself to
medical examination, the Court will be
entitled to draw an inference against him."

21. In Yuvraj Digvijay Sinhji vs.
Yuvrani
PratapKumari5
Hon'ble
Supreme Court while deciding the issue of
impotency has observed as under:-

"A party is impotent if his or her
mental
or
physical
condition
makes
consummation of the marriage a practical
impossibility. The condition must be one,
according to the statute, which existed at
the time of the marriage and continued to
be
so
until
the
institution
of
the
proceedings. In order to entitle the
appellant to obtain a decree of nullity, as
prayed for by him, he will have to establish
that his wife, the respondent, was impotent
at the time of the marriage and continued to
be
so
until
the
institution
of
the
proceedings."

22. In the present case, the marriage
between the parties was solemnised on 26th
January, 2023 and the parties had lived
together for a period of approximately five
months. Meanwhile, the petitioner wife had
also gone to her parental home for a short
duration. The stand of the petitioner-wife is
that despite efforts made by her to come
close to the respondent, there was no
cohabitation between them and there was
no
consummation
of
marriage.
Consequently, the impugned FIR was
lodged by the petitioner wife on 01.07.2023
with allegation of mental and physical
cruelty
regarding
non-fulfillment
of
demand of dowry and concealment of fact
of impotency of her husband by birth. The
investigation was carried out, wherein the
medical examination of the petitioner's
1638 INDIAN LAW REPORTS ALLAHABAD SERIES
husband was also conducted by the
Medical Board and the Committee advised
that the petitioner must go for gynecology
examination.

23. In view of the above, no
comprehensive
report
regarding
the
potency test of the husband can be prepared
and made without getting the petitioner
medically
examined
along
with
the
husband. In this case the Medical Inquiry
Committee is of the opinion that the
petitioner wife should also be medically
examined as her husband has made a
categorical statement before the Committee
that his wife does not cooperate with him
during sexual intercourse. There is no
material available on record to substantiate
the allegation made against the Inquiry
Committee of LLRM Medical College
necessitating the potency test/ medical
examination of the respondent no.5 to be
conducted by the Medical Board at KGMU
Medical College, Lucknow.

24. As there is no need to issue any
further direction regarding the prayer no.3
as the fair and impartial investigation is
being carried out and the potency test of the
husband had been conducted at the instance
of the petitioner herself and this potency
test was conducted at the stage of
investigation as per Section 2(h) Cr.P.C.
"investigation", which includes all the
proceedings under this Code for the
collection of evidence conducted by a
police officer or by any person (other than a
Magistrate) who is authorised by a
Magistrate in this behalf.

25. Therefore, we do not find any
illegality or impropriety in the impugned
communications of the Medical Inquiry
Committee
dated
07.10.2023
and
16.12.2023 and no interference is required
in the matter.

26. Accordingly, the writ petition
stands dismissed.
----------
(2024) 3 ILRA 1638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 293 of 2024

Omprakash ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Anil Kumar Tiwari

Counsel for the Respondents:
G.A.

Criminal law - Uttar Pradesh Prevention
of Cow Slaughter Act, 1955 - Sections
3/5-ka/5-kha/8 and Section 5-A(8) -
Constitution of India,1950 - Article 227 -
seizure and confiscation of vehicle- registered
owner of vehicle - one calf recovered -
pendency
of
confiscation
proceedings
-
rejection of release application by District
Magistrate - dismissal of revision and appeal -
vehicle lying in open yard for long period -
power under Sections 451 and 457 Cr.P.C. - no
useful purpose served by keeping seized vehicle
at police station - ownership not disputed -
principles of natural justice - impugned orders
not sustainable in the eye of law - confiscation
orders set aside - direction to release vehicle on
bank guarantee and bond .

W.P. allowed. (E-9)

Cases Cited:

1. Sunderbhai Ambalal Desai and C.M. Mudaliar
v. State of Gujarat, AIR 2003 SC 638