Whether wife can be subjected to virginity test if she pleads non consummation of marriage in divorce petition?

The suit
was filed by the wife seeking annulment of marriage by a decree of nullity under
Section 25 (i) and alternatively for divorce under Section 27 (1) (d) of the Special
Marriage Act, 1954. However, initially the suit was based on cruelty but
subsequently by way of amendment the wife also incorporated the ground of
nullity under Section 25 (i) of the said Act. From the pleading it appears that the
wife claimed that the marriage was void inasmuch as the same was not
consummated. In the above background after the amendment was allowed the
wife filed an application before the Court below praying potency test of the
husband. Such prayer of the wife was allowed by the order impugned. Since the
wife opposite party also pleaded in the suit that the marriage was not
consummated because of the impotency of the husband and that the same was a
void marriage, the husband also filed an application seeking virginity test of the
wife. By the order impugned the husband’s application seeking virginity test has
been rejected by the learned Court below. While rejecting the application the
learned trial Court relied on a passage of a renowned author that “Virginity test is
not a reliable indicator of a female having actually engaged in sexual intercourse
because the tearing of the hymen may have been the result of an involuntarily
sexual act” and held that it does not appear to the Court to be a sound
proposition of law. Therefore, in my view also the contention raised by the
husband that since the wife made an allegation that the marriage was not
consummated she should be subjected to virginity test cannot be accepted,
particularly, when it is undisputed that the marriage took place on 30th
November, 2006. Therefore, I do not find any illegality and/or material
irregularity in the impugned order. I do not also find any jurisdictional error on
the part of the learned trial Court in rejecting petitioner’s application for virginity
test.

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
B E F O R E :
The Hon’ble Justice SAHIDULLAH MUNSHI
C.O. No.3309 of 2018
With
C.O. No. 3310 of 2018

SRI SANDIP KUMAR DASGUPTA  Vs SMT. DIPANWITA DASGUPTA

Judgment on : June 21, 2019.

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Whether interim maintenance can be denied to wife on ground of non consummation of marriage?

 The expression used under S.24 is 'pendente

lite' which means pending litigation or during litigation,

that is for a period from the date of commencement of

litigation till it is concluded. This principle of temporary

alimony is a concept of economic guardianship to administer

justice either to the wife or to the husband, which is

extended to support either of them during the pendency

of the proceeding alone. Analysing the Section, it is found

that the right of equality is protected by the parliament

and the question of validity of the marriage will not be a

ground for denying such relief to wife or husband.

Therefore, we conclude that an application for pendente


lite maintenance can be filed in any proceedings under the

Hindu Marriage Act 1955 (Sections 9 to 13) and any

application made after disposal of the main petition has no

independent existence. In short, the primary responsibility

of the Family Court is that before passing the decree in

the main petition, it has to dispose of the interim

maintenance application under Section 24 of the Act

exercising its discretionary powers. While exercising such

discretionary power, the Court has to follow sound judicial

principles and has to consider the economic condition of

both parties. Here, the main petition is pending in the

Family Court, Thiruvananthapuram.         While so, the

observation of the Family Court that petition for

maintenance pendente lite cannot be considered at this

stage, since the respondent contended that there is no

consummation of marriage, is per-se illegal and absolutely


unsustainable. An application pending under Section 12 is

not a ground to refuse interim maintenance to the wife.

Therefore, Ext.P4 order is liable to be set aside.
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

               MR.JUSTICE V.K.MOHANAN
                                  &
                 MR. JUSTICE P.D.RAJAN

     WEDNESDAY, THE 25TH DAY OF FEBRUARY 2015/

                    OP (FC).No. 502 of 2014 (R)
                    ----------------------------

       R.C.SHEEJAKUMARI 
Vs
       PRAVEEN.S.R.
  Citation;AIR 2015 kerala 135    

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