Upgrad LLM

is affidavit filing mandatory?


I'm contesting the annulment case filed by wife on the ground of Impotency. The counter filing is over, and, on next date, should they file affidavit? Is it must that petitioner file affidavit, or Can the respondent ask the petitioner to file affidavit? I'm insisting on affidavit just because there could be no chance to withdraw/change her allegation of my impotency once the medical test is over. Is it her duty to ask for my medical checkup to prove her allegation, or is it my duty to ask for my checkup to negate her allegation? What if she does not ask for medical checkup? If so, would it be my duty to ask for medical checkup. please help.

 
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advocate

For proving her case she will have to file affidavit as evidence.  In case she is not filing any affidavit, an adverse inference can be drawn against her.  In normal cource, person who alleges, will have to prove the case by filing cogent evidence. However, in your case, medical test can be done upon you, therefore, it preferable if you file medical test report to negate her claim.


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propra

An Affidavit alongwith pleading is procedurally binding since 2005.......but she can do so anytime if the Hon Court orders to so or if you raise objection to absence of affidavit.

 

Her plea is construed as if you behaved to her as if you were impotent during tenure of your both conjugal cohabitation......that's all......................today's reality could be different......so even if the tests turn positive to your side.......her plea can not boomrang onto her....atleast............. At the max it would be called as lacking merits......

 

If your wife has filed the petition apparently on her own without formal legal help.............and if there is no vakalatnama and a mere proxy legal counsel to support her.....then also can do so laterwards.

 


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Somewhere I've read about a supreme court directive that the petitioner ,before asking the medical-checkup of respondent, should have submitted 'minimum evidence' to support his/her allegation of impotency. So, what are the evidences supposed to be 'minimum evidence' in case of impotency allegation? Is it any history of previous medical checkups or treatments? In case of a one month long married life, also in the absence of any such evidences, will impotency allegation be meritorious in court to order the medical checkup of husband? Husband has already filed RCR. please advise.

 
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advocate

Nobody can be compelled for medical checkup. It amounts to encroachment on person's liberty granted by the constitution of India.

 
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Originally posted by :valentine
"
Nobody can be compelled for medical checkup. It amounts to encroachment on person's liberty granted by the constitution of India.
"

There are clear supreme court judgements that family courts have the power to send the parties for medical checkup if necessary, and passing such a order does not violate the personal liberty under article 21.

 
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i think this statement is right ;


Nobody can be compelled for medical checkup. It amounts to encroachment on person's liberty granted by the constitution of India.

 

But here court can suggest for medical check for reason like above said i.e,Impotency.

 
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Consultant

YES u can be asked though not forced to do so, by the way why dont you go ex -partee and get rid of her.

 
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advocate

It is not mandatory. If you do not present yourself for check up adverse inference can be drawn by the court against you but you cannot be compelled do undergo medical check up. Please correct me with citations.

 
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Hi what is the meaning of adverse inference? Will the husband be taunted as impotent if he refuses medical tests?Can marriage be annulled if both parties say marriage has not beeen consummated if wife does not cooperate in s*xual activities and alleges impotency on husband? Please reply asap
 
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