In a writ petition filed before the Rajasthan High Court against the legality, validity, and propriety of an order dated 15-05-2026 by the Additional District and Sessions Judge, Gangapur, Bhilwara, whereby the husband’s (petitioner) application under Order XVIII, Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) was rejected, a Single Judge Bench of Justice Sanjeet Purohit dismissed the petition holding that the husband had failed to establish the necessity of the proposed tests.
The wife (respondent) instituted a petition under Section 13(1)(2) of the Hindu Marriage Act, 1955 (HMA), seeking a decree of divorce before the Trial Court. She cited the grounds of divorce to be desertion, cruelty, and allegations pertaining to the incapacity or impotency of the husband. The husband filed a reply raising counter-allegations against the wife. He averred that he made efforts to preserve the matrimonial relationship, but his wife was unwilling to live in matrimonial cohabitation.
The husband asserted that the wife used to threaten him by saying that she would implicate him in false legal proceedings. He also contended that she failed to resume cohabitation despite an order passed by a competent Court under Section 9 of the Act of 1955. During the pendency of the proceedings, after the evidence of both parties concluded and the matter reached the stage of final arguments, the husband moved an application dated 08-05-2026 under Order XVIII Rule 17 read with Section 151 of the CPC. In view of the allegations of sexual incompetence, impotency, and other sexual infirmities, he prayed that both parties be directed to undergo a joint narco-analysis test, polygraph test, medical examination, and DNA testing. He also offered to bear the entire cost of the tests.
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The wife filed a reply averring that the application was filed at a belated stage only to delay the proceedings and fill lacunae in the evidence. She contended that she could not be compelled to undergo such tests against her will. The Trial Court dismissed the application by the impugned order. Aggrieved, the husband filed the present petition.
The Court perused the record and found that the application was filed after the conclusion of evidence when the matter was posted for final arguments. It was also noted that the husband made no endeavor during his own evidence to place any medical evidence on record to rebut the allegations. The Court referred to K.K. Velusamy v. N. Palanisamy 2011 (11) SCC 275, Gayathri v. Girish (2016) 14 SCC 142, and stated that even though the court possesses inherent power to permit additional evidence or recall a witness where the same is necessary, such power is exceptional and cannot be invoked in a routine manner to enable party to fill omissions in evidence led.
The Court stated that the husband had failed to furnish any satisfactory explanation as to how the test was relevant and why such a prayer was not made at the appropriate stage of proceedings. It was said that no relevance of DNA testing, polygraph exam, or narco-analysis was made to the allegations of sexual incapacity in the matrimonial proceedings.
The Court referred to Deep Mukherjee v. Sreyashi Banerjee 2024 SCC OnLine SC 502 and opined that the husband’s prayer was legally untenable. It was held that a wife cannot be compelled to undergo such tests without her consent and the Court found that the belated application lent credence to the wife’s contention that it lacked bona fide, which amounted to a gross abuse of the process of law. The Court also concurred with the Trial Court that the burden of establishing the allegations of sexual incapacity rested primarily on the wife, and that the Court could not be called upon to collect evidence or fill gaps in evidence that a litigant must establish.
The Court held that its supervisory jurisdiction under Article 227 of the Constitution is limited and does not extend to substituting findings unless the impugned order suffers from patent perversity, manifest illegality, or jurisdictional error. Finding no such error, the petition was dismissed.
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