Bombay High Court
Sachin Ganpatrao Jadhav vs Vasudha @ Rupali Sachin Jadhav on 18 August, 2022
Bench: C.V. Bhadang
23-wp-10738-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10738 OF 2019
Sachin Ganpatrao Jadhav ...Petitioner
Vs.
Vasudha @ Rupali Sachin Jadhav ... Respondent
NILAM
Digitally signed
by NILAM
----
Mr.Umesh H. Pawar for the Petitioner.
SANTOSH
SANTOSH KAMBLE
KAMBLE Date: 2022.08.18
Mr.Nikhil N. Pawar for the Respondents.
18:21:39 +0530
----
CORAM : C.V. BHADANG, J.
DATE : 18 AUGUST 2022
P.C.
. Rule made returnable forthwith. The learned counsel
for the Respondent waives service. Heard finally by consent of
parties.
2. The challenge in this Petition at the instance of the
Petitioner-Husband is to the order dated 25 June 2019 passed by
the learned Civil Judge Senior Division, Islampur in HMP No.28
of 2018, below Exhibit-22. By the impugned order the learned
Trial Court has refused to direct the Respondent-Wife to subject
herself for medical examination.
N.S. Kamble page 1 of 6
23-wp-10738-2019.doc
3. The aforesaid Petition is filed by the Petitioner
against the Respondent for dissolution of marriage on the ground
that the Respondent is suffering from Schizophrenia. According
to the Petitioner, shortly after their marriage, he noticed that the
mental condition of the Respondent, is not stable and an
evaluation of the mental condition, made before the Pschygolgist
Mr.Kapil Lalit on 21 July 2017 and as per the report submitted by
him the Respondent was disclosed to have symptoms of
depression with psychotic symptoms or schizoaffective disorder.
It is submitted that the Petitioner is seeking dissolution of
marriage solely on the ground of the mental illness of the
Petitioner.
4. Reliance is placed on the decision of the Supreme
Court in Sharda V/s. Dharmpal1, in order to submit that the
Supreme Court, in similar circumstances has held that such a
direction to compel a party to a medical examination is not
violative of Article 21 of the Constitution of India. The learned
counsel has also placed reliance on a 'short case record' of the
Petitioner, from the Government Hospital, Sangli, wherein
expert had advised follow up for psychological evaluation and
'Rorsachach test'.
5. The learned counsel however did not dispute that the
decision of the Supreme Court was not brought to the notice of
1 (2003) 4 Supreme Court Cases 493
N.S. Kamble page 2 of 6
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the Trial Court. Even sofar as the short case record from the
Government Hospital, Sangli is concerned it was not filed before
the Trial Court.
6. The learned counsel for the Respondent submitted
that the Application has rightly been rejected as the Petitioner has
not even led any evidence in the matter and there is no prima
facie material to show that the Respondent is suffering from
mental illness. The learned counsel pointed out that the
Respondent was serving in Kusumgandh English Medium
School, Islampur and the experience certificate dated 26 February
2021 is produced on record.
7. In reply it is submitted by the learned counsel for the
Petitioner that the certificate is for the period from 1 June 2020
till 26 February 2021 during which period on account of the
Covid-19 pandemic the schools were closed. He therefore,
submitted that no reliance can be placed on the experience
certificate.
8. I have considered the submissions made. It can be
seen that the Petition for dissolution of marriage filed by the
Petitioner, is solely based on the alleged mental illness of the
Respondent. According to the Petitioner, the Respondent is
suffering from Schizophrenia for which reliance is placed on the
N.S. Kamble page 3 of 6
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psychological tests done by Psychologist Dr. Kapil Lalit and short
case record from the Government Hospital, Sangli.
9. The Supreme Court in Sharda (Supra) has held thus
in paragraph Nos.76 to 78.
"76. The matter may be considered from another angle. In
all such matrimonial cases where divorce is sought, say on the
ground of impotency, schizophrenia...etc. normally without
there being medical examination, it would be difficult to
arrive at a conclusion as to whether the allegation made by his
spouse against the other spouses seeking divorce on such a
ground, is correct or not. In order to substantiate such
allegation, the petitioner would always insist on medical
examination. If respondent avoids such medical examination
on the ground that it violates his/her right to privacy or for a
matter right to personal liberty as enshrined under Article 21
of the Constitution of India, then it may in most of such cases
become impossible to arrive at a conclusion. It may render the
very grounds on which divorce is permissible nugatory.
Therefore, when there is no right to privacy specifically
conferred by Article 21 of the Constitution of India and with
the extensive interpretation of the phrase "personal liberty"
this right has been read into Article 21, it cannot be treated as
absolute right. What is emphasized is that some limitations
on this right have to be imposed and particularly where two
competing interests clash. In mattes of aforesaid nature where
the legislature has conferred a right upon his spouse to seek
divorce on such grounds, it would be the right of that spouse
which comes in conflict with the so-called right to privacy of
the respondent. Thus the Court has to reconcile these
competing interests by balancing the interests involved.
77. If for arriving at the satisfaction of the Court and to
protect the right of a party to the lis who may otherwise be
found to be incapable of protecting his own interest, the
Court passes an appropriate order, the question of such action
being violative of Article 21 of the Constitution of India
would not arise. The Court having regard to Article 21 of the
Constitution of India must also see to it that the right of a
person to defend himself must be adequately protected.
N.S. Kamble page 4 of 6
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78. It is, however, axiomatic that a Court shall not order a
roving inquiry. It must have sufficient materials before it to
enable it to exercise its discretion. Exercise of such discretion
would be subjected to the supervisory jurisdiction of the
High Court in terms of Section 115 of the Code of Civil
Procedure and/or Article 227 of the Constitution of India.
Abuse of the discretionary power at the hands of a Court is
not expected. The Court must arrive at a finding that the
applicant has established a strong prima facie case before
passing such an order."
10. It can thus be seen that although the Supreme Court
has held that such an order directing the party to undergo
medical examination, is not violative under Article 21 of the
Constitution of India, the Court shall not order a roving enquiry
and must have sufficient material before it for exercise of its
discretion.
11. As noticed earlier the Petitioner has neither brought
the judgment in Sharda (Supra) to the notice of the learned Trial
Court nor the case record from the Government Hospital, Sangli
was before the Trial Court, when the impugned order was passed.
12. Considering the overall circumstances, in my view it
would be appropriate if the learned Trial Court reconsiders the
Application on its own merits and in light of the rival
submissions made and the decision of the Supreme Court in
Sharada's case. Such a course of action would enable the parties
to produce further documents, if any, in order to prima facie show
N.S. Kamble page 5 of 6
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mental condition of the Respondent on the basis of which the
Trial Court can pass appropriate order after hearing the parties.
13. In such circumstances, the Petition is partly allowed.
14. The Application at Exhibi-22 is restored to file, for
deciding it afresh in accordance with law and in light of the
observations made herein.
It will be open for the parties to produce documents
in support of their rival contentions on Application Exhibit-22
before the Trial Court.
15. The rival contentions of the parties on merits are left
open.
16. The Trial Court shall decide the Application
(Exh-22) as expeditiously as possible and preferably within a
period of two months from the receipt hereof.
Rule is partly made absolute, with no order as to
costs.
C.V. BHADANG, J.
N.S. Kamble page 6 of 6
