Court relief for hubby charged with impotency
Swati Deshpande, TNN, Sep 14, 2010, 06.36am IST
MUMBAI: A city businessman facing a police probe after his wife of 12 years accused him of being impotent and venting his "frustrations'' by beating her will not be compelled to undergo a potency test.
Offering the Peddar Road resident this respite, a public prosecutor when asked by the Bombay high court if such test was necessary n Monday said that the police would not insist on the test but would continue investigations in the wife's complaint under section 498-A of the Indian Penal Code ( IPC).
A bench headed by Justice Ajay Khanwilkar recorded the prosecutor's statement. The wife is seeking to annul the marriage before the family court in Bandra where she made a similar demand of having her husband tested for impotency. The HC said that since criminal and civil cases are separate proceedings the family court can deal with the civil plea independently.
The wife, a businessman's daughter, said her marriage was never consummated. Married in 1998, she only recently lodged an FIR against her husband.
Last month when the police wanted to test the husband at the civic-run Nair hospital for impotency, he rushed to the high court to challenge the powers of the police. His lawyer Edith Dey said the scope of police investigation could not include carrying out such medical tests.
Last week, the HC had suggested a mutual consent divorce. On Monday, with the mutual consent terms failing after the couple disagreed over the issue of stree-dhan, the high court asked the public prosecutor whether medical tests for impotency test must be carried out for the police investigation. The judges also asked the prosecutor to read out the wife's statement to the police to show whether wilful cruelty was linked to the alleged impotency of the husband. The prosecutor could not point to a link and said that the police had in the past not conducted such tests.
The wife's lawyer, advocate Flavia Agnes, in the family court was relying on supreme court rulings to say that the family court has the power to compel a husband to undergo an impotency test and in case of refusal, adverse inference can be drawn against him. She is also relying on a ruling which permitted annulment after several years marriage.
We will not insist potency test in matrimonial dispute: Police
Accepting the statement on record, a bench of Justice Ajay Khanvilkar and Justice U D Salvi disposed of a petition seeking a direction to the state and police not to insist on potency test.
The couple, Ajay and Jamuna (names changed) married on March 24, 1988, and after 11 years Jamuna filed a police complaint alleging cruelty on the ground that her husband was impotent.
Ajay was arrested on January 5 this year and granted bail by Additional Chief Metropolitan Magistrate a week thereafter subject to certain conditions.
However, in July, the state applied for modification of bail condition to change the day of attendance from Sunday to Tuesday for conducting potency test of the accused.
The Magistrate modified the order to the extent of changing the day of attendance from Sunday to Tuesday but did not change other conditions. In the earlier order, there was no mention of the court allowing potency test of the accused.
Despite this the police took Ajay to a hospital for conducting potency and psychiatry tests. Later, he moved the High Court saying the action of police violated human rights and his right to dignity. He said non-consummation of marriage does not amount to cruelty as per the scope and purview of section 498 A IPC under which his wife had filed a complaint.