Prapti Apurva Dave D/O ... vs Apurva Jagdishchandra Dave
2022 Latest Caselaw 9947 Guj

     C/SCA/20552/2022                              JUDGMENT DATED: 09/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20552 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                                Sd/-

==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                            YES

2     To be referred to the Reporter or not ?
                                                                       YES
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                 NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution               NO
      of India or any order made thereunder ?

==========================================================
             PRAPTI APURVA DAVE D/O MAHENDRABHAI GANDHI
                                Versus
                     APURVA JAGDISHCHANDRA DAVE
==========================================================
Appearance:
MR JAYANT P BHATT(169) for the Respondent(s) No. 1
MR JEET J BHATT(6154) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 09/12/2022

                             ORAL JUDGMENT

1. Heard the Party-in-Person Ms. Prapti Apurva Dave and learned

Advocate Mr. Jayant P. Bhatt on behalf of the respondent.

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

2. Issue Rule returnable forthwith. Learned Advocate Mr. Bhatt

waives service of rule on behalf of the respondent.

3. By way of this application, the Party-in-Person seeks to challenge

an order passed by the learned Principal Judge, Family Court,

Gandhinagar dated 03.09.2022 below Exhibit 177 in Family Suit

No. 166 of 2013 whereby the learned Family Court had rejected

the application preferred by the Party-in-Person-wife before the

Family Court to appoint a medical expert for psychological

evaluation of the respondent-original applicant before the Family

Court.

4. It is the submission of the Party-in-Person that during the course of

examination of two witnesses i.e. one Dr. B. C. Patel and Dr. A. A.

Kureshi, who had treated the applicant before the learned Family

Court- respondent herein, on two separate occasions, i.e. Dr. B. C.

Patel having examined the respondent-husband in connection with

a criminal case lodged against husband under the provisions of the

Gujarat Prohibition Act and more particularly, in case of Dr. A. A.

Kureshi who had treated the respondent-husband in a Medico-legal

case where the respondent-husband had inflicted injuries on his self

by cutting both his wrists, that the petitioner-wife, had come to

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

know about the possibility of respondent-husband suffering from

Obsessive Compulsive Disorder (OCD) for which the husband had

been taking Psychiatric treatment.

4.1. The Party-in-Person would submit that since the said aspect

came to the knowledge of the Party-in-Person, applicant-wife

herein, during course of the cross examination of the above

witnesses, that the applicant-wife had given such an application

much after the issues were framed and whereas, it is on account

of such fact not being known to the applicant-wife that even in

her written statement before the learned Family Court that the

applicant had not raised any such contention. The Party-in-

person would submit that since such an aspect had come to the

notice of the Party-in-Person during course of the proceeding,

the Party-in-Person had immediately preferred an application

invoking the aid of Section 12 of the Family Courts Act,

requesting the Court to take assistance of experts for evaluating

the psychological condition of the respondent-husband. The

Party-in-Person would submit that since as such there had been

no delay on part of the present Party-in-Person and though the

case before the learned Family Court had reached at an

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

advanced stage, yet, neither the aspect of delay nor the aspect of

advanced stage, should have disadvantaged the Party-in-Person

from seeking such a relief and whereas, according to the Party-

in-Person the learned Family Court had committed an error in

rejecting the said application.

4.2. The Party-in-Person would further draw the attention of this

Court to provisions of Section 12 and 14 of the Family Courts

Act to submit that it is always open for the Court to engage

services of Medical experts and whereas, according to Section

14, strict Rules under the Indian Evidence Act may not be

applicable to procedure which may be adopted by the learned

Family Court. Having regard to such submissions, the Party-in-

Person would request this Court to set aside the order passed by

the learned Family Court and further direct the learned Family

Court to call for assistance of medical experts to evaluate the

psychological condition of the respondent-husband.

4.3. The Party-in-Person relies upon decision of the Hon'ble

Apex Court in case of Sharda Vs. Dharmpal reported in 2003

4 (SCC) page 493 in support of her submissions.

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

5. This application is vehemently objected to by the learned Advocate

Mr. Bhatt on behalf of the respondent-husband. Learned Advocate

Mr. Bhatt would submit that the present application is one more

attempt by the applicant-wife to protract the legal proceedings.

Learned Advocate Mr. Bhatt would submit that the Family Suit

itself had been filed in the year 2013, more particularly, whereby

the respondent-husband had sought for divorce and whereas,

according to learned Advocate Mr. Bhatt on account of repeated

applications being moved by the applicant-wife herein, the Family

Suit, has not concluded even after almost 9 years from the date of

filing.

5.1. Insofar as the merits are concerned, learned Advocate Mr.

Bhatt would submit that as such the Party-in-Person applicant-

wife had not raised any such plea with regard to any

psychological disorder suffered by the husband in her written

statement. Learned Advocate Mr. Bhatt would further submit

that even no issues as regards the psychological disorder part of

the husband has been framed by the learned Family Court.

Learned Advocate Mr. Bhatt would submit that under such

circumstances, there is no point in calling for a medical expert

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

for the psychological evaluation of the respondent-husband.

Learned Advocate Mr. Bhatt would further submit that the

present being an application under Article 227 of the

Constitution of India, as per the law laid down by the Hon'ble

Apex Court, such jurisdiction has to be exercised sparingly and

only in exceptional cases and whereas, according to learned

Advocate Mr. Bhatt, the present not being an exceptional case

and whereas, appropriate reasons having been stated by the

learned Family Court in rejecting the application preferred by

the present applicant, according to learned Advocate no

interference is called for by this Court.

6. In rejoinder the Party-in-Person would submit that the trial is not

delayed at the instance of the Party-in-Person and whereas it is

submitted that the trial had not concluded on account of

applications moved by the respondent himself. The Party-in-

Person would further submit that the learned Family Court while

framing the issues, has framed issue no. 2 which is whether the

respondent-wife proves that she is treated with cruelty by the

petitioner husband. Issue no. 6 according to the Party-in-Person is

with regard to an aspect of who has deserted whom from the

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

parties to the marriage. The Party-in-Person would submit that for

coming to a just conclusion with regard to both the issues as

aforementioned, the aspect of psychological evaluation of the

respondent-husband, would be necessary. The Party-in-Person

would therefore, submit that having regard to the nature of the

issue, in case, the psychological evaluation reveals mental disorder

of the husband, then it would be in the interest of the Party-in-

Person who is contesting the application for divorce preferred by

the respondent-husband. The Party-in-Person would submit that

under such circumstances, the learned Family Court had gravely

erred in rejecting the application preferred by the present applicant

and therefore, request this Court to interfere and set aside the

impugned order.

7. This Court has heard the Party-in-Person as well as the learned

Advocate Mr. Bhatt for the respondent who have not submitted

anything further.

8. This Court has also perused the record including the impugned

order as well as the examination in chief and cross examination of

the doctors concerned, more particularly, the same being relied

upon by the Party-in-Person. Before evaluating the facts, this Court

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

deems it appropriate to refer to Section 12 of the Family Courts

Act, 1984. Section 12, is reproduced herein below for benefit.

Section 12: " Assistance of medical and welfare experts.- In every

suit or proceedings, it shall be open to a Family Court to secure the

services of a medical expert or such person (preferably a woman

where available), whether related to the parties or not, including a

person professionally engaged in promoting the welfare of the family

as the court may think fit, for the purposes of assisting the Family

Court in discharging the functions imposed by this Act.

9. A perusal of Section 12 reveals that the Family Court is

empowered to secure the services of a medical expert or such

person including a professional for the purpose of assisting the

Family Court in discharging the functions imposed by the Act. The

present issue arises from an application moved by the applicant-

wife who wants a psychological assessment of the respondent-

husband and whereas, considering the scope and ambit of Section

12 of the Family Courts Act, there is no doubt with regard to the

power available to Family Court to secure the services of a medical

expert.

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

10. Having observed as above, insofar as the facts are

concerned, it appears that while the Party-in-Person is relying upon

the examination in chief and cross examination of two doctors

namely Dr. B. C. Patel and Dr. A. A. Kureshi and whereas, upon

perusing the examination in chief and cross examination of both

the said doctors, in the considered opinion of this Court, as regards

the issue raised in the present application, the testimony of the

doctor B. C. Patel would not advance the cause of the Party-in-

Person at all, more particularly the said doctor not having opined or

stated anything with regard to any psychological disorder suffered

by the respondent husband. On the other hand, insofar as the

testimony of Dr. A. A. Kureshi, it appears that the said doctor

was a medical officer at the Community Health Centre, Santalpur

during the period between 2006-2018 and whereas, in the month of

August, 2012, the respondent-husband had gone for treatment to

the C.H.C., more particularly, on account of self-inflicted injury

whereby the husband had inflicted injuries on his arms by using a

shaving blade. The said doctor at the relevant point of time, in his

examination of the husband, had inter alia observed in his initial

assessment of the patient (Exh.170) more particularly in the

column of past history that the husband is undergoing psychiatric

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

treatment for last 5 to 6 years for Obsessive Compulsive Disorder.

It appears that while a question had been posed to the said doctor

by the Party-in-Person as to whether a person suffering from

Obsessive Compulsive Disorder and suicidal tendencies can live

with his wife and children and whereas, in view of the objection

taken by the learned Advocate Mr. Bhatt for respondent-husband,

the said question had been disallowed.

11. Be that as it may, it also appears that the said doctor after

examining the husband at the relevant point of time and having

treated the husband, and whereas it also appears that the surgeon

in-charge of the CHC had referred the husband to the Civil

Hospital, Ahmedabad for psychological treatment. It appears that it

is upon such facts being revealed during the testimony of the said

doctor in the month of July, 2021 that the Party-in-Person applicant

herein had realized about the husband suffering from some

psychological illness. It also appears that upon coming to know of

such facts, the applicant Party-in-Person had moved an application

below Exhibit 177 in the month of October, 2021.

12. Having perused the testimony of the doctor concerned and

also having gone through the medical papers which are annexed

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

with the present application, more particularly, as regards treatment

of the respondent-husband at the relevant point of time i.e. in the

year 2012, it clearly appears that the respondent husband himself

had revealed before the doctor that he was taking psychiatric

treatment for last 5 to 6 years for Obsessive Compulsive Disorder.

It also appears that at the relevant point of time, as revealed from

the testimony of the doctor that the respondent-husband had been

referred to the Civil Hospital, Ahmedabad for psychiatric treatment

and whereas, according to the testimony of the doctor concerned,

the referral was by the surgeon and not by the said witness.

13. Having regard to such circumstances, it prima facie appears

that as far as back in the year 2012 i.e. prior to the filing of the

Family Suit, the respondent-husband had revealed about the

husband undergoing some psychological treatment and whereas,

considering that such revelation had been to a doctor where the

husband had gone for treatment, this Court does not find any

reason to prima facie disbelieve such testimony, more particularly

for the purpose of the present petition.

14. At this stage, this Court seeks to rely upon decision of the

Hon'ble Apex Court in case of Sharda Vs. Dharmpal reported in

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

2003 4 (SCC) 493 whereby the Hon'ble Apex Court had inter alia

laid down the law with regard to Section 12 of the Family Courts

Act, more particularly, with regard to exercise of powers by the

learned Family Court to direct a person to undergo medical tests.

The Hon'ble Apex Court having elaborately discussed the law with

regard to the said issue, at paragraph 81 had clarified the said

aspect and whereas, paragraph 81 is reproduced herein below for

benefit.

Paragraph 81:

"1. A matrimonial court has the power to order a person to undergo

medical test.

2. Passing of such an order by the court would not be in violation of

the right to personal liberty under Article 21 of the Indian

Constitution.

3. However, the court should exercise such a power if the applicant

has a strong prima facie case and there is sufficient material before

the court. If despite the order of the court, the respondent refuses to

submit himself to medical examination, the court will be entitled to

draw an adverse inference against him."

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

15. A perusal of the law laid down by the Hon'ble Apex Court

in decision of Sharda (Supra) clearly reveals that as per the

Hon'ble Court, the Matrimonial Court- Family Court here has the

power to order a person to undergo medical tests. It is also clarified

by the Hon'ble Apex Court that such a direction would not be in

violation of the right to personal liberty available to such person

under Article 21 of the Constitution of India. The precondition as

laid down by the Hon'ble Apex Court for exercising such power is

that if there is a strong prima facie case in favour of the applicant

and there is sufficient material before the Court then the Court

could order medical examination and whereas, according to the

Hon'ble Apex Court in case the person so directed to undergo

medical examination refuses to subject himself to such medical

examination then the Court concerned would be entitled to draw an

adverse interference against such person.

16. Considering the fact situation from the stand point of the law

laid down by the Hon'ble Apex Court, while it is clear that the

Family Court in fact has the power to direct any person to undergo

medical evaluation but at the same time, the precondition being

there should be a strong prima facie case in favour of the person

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

requesting medical examination of another and there should be

sufficient material with regard to such prima facie case before the

Court. In the instant case as it appears and as noted herein above,

the testimony of Dr. A. A. Kureshi, clinches the issue in favour of

the applicant-wife. The said doctor who had treated the respondent-

husband as far back as in the year 2012, has noted that the husband

was undergoing psychiatric treatment for around 5 to 6 years for

Obsessive Compulsive Disorder. It also appears that at the relevant

point of time the doctor had prima facie opined that the husband

was having suicidal tendencies, more particularly, having regard to

the nature of injuries i.e. self-inflicted injuries by the husband. It

also appears that a surgeon in-charge of the hospital concerned, had

at the relevant point of time opined/ referred the respondent-

husband for psychological treatment to the Civil Hospital at

Ahmedabad. The said aspects, are supported by the medical papers,

more particularly, the medical papers of the General Hospital,

Gandhinagar dated 24.08.2012 where the respondent-husband had

gone for treatment of the self-inflicted injuries. The aspects noted

in the testimony of Dr. Kureshi are found in the case papers of the

respondent-husband. Having regard to the same, the twin

conditions laid down by the Hon'ble Apex Court i.e. a strong prima

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

facie case and sufficient material, are both fulfilled in the present

case.

17. It further appears that a submission had been raised by

learned Advocate for the respondent that the applicant-wife herein,

had neither raised the issue in her written submissions nor any

issue having been framed by the learned Family Court in this

regard. As against the same, in the considered opinion of this

Court, this Court finds force in the submission of the Party-in-

Person that it is only upon the testimony of Dr. Kureshi that the

applicant-wife had learned about the psychological treatment being

taken by the respondent-husband for Obsessive Compulsive

Disorder. It also appears that immediately upon the testimony of

the Dr. Kureshi for July, 2021 the applicant had moved an

application in October, 2021 for psychological evaluation. Thus,

any time prior thereto i.e. either at the stage of filing the written

submission or at the stage of framing of issues, more particularly,

since the applicant Party-in-Person-wife could reasonably contend

that before the examination / testimony of Dr. Kureshi since the

wife was not aware about such facts, she could not have preferred

any such application.

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

17.1. Furthermore, it also appears that the aspect of psychological

evaluation of the respondent-husband, would have a clear

bearing on issues no. 2 and 6 as framed by the learned Family

Court, more particularly, with regard to the wife being treated

cruelly by the husband and with regard to the finding out who

had deserted whom from the parties to the marriage.

Furthermore, in the considered opinion of this Court, it is

always open for the learned Family Court, after the

psychological evaluation of the respondent-husband to frame

additional issues, if need be, with regard to any finding/ opinion

by the psychological expert.

18. Insofar as the submission made by learned Advocate Mr.

Bhatt with regard to the jurisdiction of this Court under Article 227

of the Constitution of India being required to be exercised only

sparingly and in exceptional cases, in the considered opinion of this

Court, the present would definitely fall under the category of an

exceptional case. In a dispute between the husband and wife where

the husband has filed for divorce against the wife on the ground of

cruelty, the aspect of medical/ psychiatric evaluation of the

husband as to whether the husband is suffering from Obsessive

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

Compulsive Disorder/ Psychiatric illness or not, more particularly,

since there is prima facie strong case in favour of the applicant-

wife herein and since there is sufficient material as per the twin test

laid down by the Hon'ble Apex Court in case of Sharda (supra), it

clearly appears that the learned Family Court had erred in rejecting

such application and therefore, as noted herein above in view of the

exceptional nature of the case, the present would be a fit case for

this Court to exercise jurisdiction available to this Court in Article

227 of the Constitution of India.

19. At this stage, this Court seeks to rely upon the decision of

the Hon'ble Apex Court in case of Garment Craft Vs. Prakash

Chand Goel reported in 2022 4(SCC) page. 181. Paragraph 15 of

the said decision being relevant for the present purpose is quoted

herein below for benefit.

Paragraph 15:

"Having heard the counsel for the parties, we are clearly of the view

that the impugned order is contrary to law and cannot be sustained

for several reasons, but primarily for deviation from the limited

jurisdiction exercised by the High Court under Article 227 of the

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

Constitution of India. The High Court exercising supervisory

jurisdiction does not act as a court of first appeal to reappreciate,

reweigh the evidence or facts upon which the determination under

challenge is based. Supervisory jurisdiction is not to correct every

error of fact or even a legal flaw when the final finding is justified or

can be supported. The High Court is not to substitute its own

decision on facts and conclusion, for that of the inferior court or

tribunal. The jurisdiction exercised is in the nature of correctional

jurisdiction to set right grave dereliction of duty or flagrant abuse,

violation of fundamental principles of law or justice. The power

under Article 227 is exercised sparingly in appropriate cases, like

when there is no evidence at all to justify, or the finding is so

perverse that no reasonable person can possibly come to such a

conclusion that the court or tribunal has come to. It is axiomatic that

such discretionary relief must be exercised to ensure there is no

miscarriage of justice."

20. The Hon'ble Apex Court has laid down the law with regard

to exercise of powers by this Court under Article 227 of the

Constitution of India. The Hon'ble Apex Court, while holding that

power under the Article 227 of the Constitution of India has to be

exercised sparingly and in exceptional cases has also laid down

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

that such power is to be exercised to ensure that there is no

miscarriage of justice. In the instant case, in the considered opinion

of this Court, rejecting the application preferred by the applicant-

wife, more particularly, in view of the strong prima facie case

made out by the respondent-wife and in view of the sufficient

material produced by the respondent-wife, has clearly, in the

considered opinion of this Court, caused of miscarriage of justice

and whereas, under such circumstances, interference of this Court

is warranted.

21. Having regard to the discussions, findings and conclusions

arrived at herein above, in the considered opinion of this Court, the

present application deserves to be allowed. In this view of the

matter, the following directions are passed.

[1] Order dated 03.09.2022 passed by the learned Principal Judge,

Family Court, Gandhinagar below Exhibit 177 in Family Suit No.

166 of 2013 is hereby quashed and set aside.

[2] The learned Family Court is directed to appoint a medical

expert/ psychiatrist for the psychological evaluation of the

respondent-husband i.e. Mr. Apurva J. Dave.

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

[3] The learned Family Court is at liberty to appoint a competent

medical expert and also to lay down the terms of reference,

evaluation, if though fit. The learned Family Court is also at liberty

to lay down a specific time limit for such medical evaluation.

[4] The learned Family Court upon the medical expert/ psychiatrist

submitting his report, shall proceed further with regard to the same

in accordance with law.

[5] In case the respondent-husband does not submit himself for

psychiatric evaluation, then as per the law laid down by the

Hon'ble Apex Court in Sharda (Supra), the learned Family Court

would be entitled to draw adverse inference against the respondent-

husband.

[6] The entire exercise as noted herein above shall be finalized by

the learned Family Court within a period of 3 months from the date

of receipt of this order.

22. With these observations and directions, the present

application is disposed of as allowed. Needless to mention that all

the above observations, are for the purpose of deciding the present

C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022

application and whereas, the learned Family Court shall not in any

manner be prejudiced by any of the observations herein above

while finally deciding the Family Suit. It is further directed that

after the opinion of the medical expert is received or after the

respondent-husband does not subject himself to medical

examination in spite of direction of the Family Court, the learned

Family Court shall decide the Family Suit No. 166 of 2013 as

expeditiously as possible, more particularly, considering that the

some had been filed in the year 2013. Rule is made absolute to the

above terms.

Sd/-

(NIKHIL S. KARIEL,J) Mrs.J.J.Kedia/V.V.P. PODUVAL