Smt. Gayatri Alias Gadigevva W/O ... vs Vijay S/O Siddappa Hadimani
2021 Latest Caselaw 5345 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 3RDDAY OF DECEMBER 2021

                        BEFORE

        THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

         WRIT PETITION NO.102933/2021 (GM CPC)

BETWEEN:

SMT GAYATRI @ GADIGEVVA W/O VIJAY HADIMANI,
AGE 28 YEARS, OCC-HOUSEHOLD WORK,
R/O HONNAPUR, TQ-ALNAVAR,
DIST-DHARWAD.
                                              ...PETITIONER
(BY SRI RAJENDRA R.PATIL, ADVOCATE FOR
SRI SRINAND A. PACHHAPURE, ADVOCATE)

AND :

VIJAY S/O SIDDAPPA HADIMANI,
AGE 35 YEARS,OCC-RAILWAY EMPLOYEE,
R/O VANASHRI ROAD, SATERI PLOT,
ALNAVAR, TQ AND DIST-DHARWAD-580 001.
                                            ..RESPONDENT

(BYSMT SUMANGALA A.CHAKALABBI AND
SRI S.B.DODDAGOUDAR, ADVOCATE)


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI SETTING ASIDE THE ORDER DATED 30.03.2021,
PASSED BY THE PRL.JUDGE, FAMILY COURT, DHARWAD ON
I.A.NO.IX IN M.C.NO.192/2017 MARKED AT ANNEXURE-A.

     THIS PETITION WAS HEARD ON 03.12.2021 AND RESERVED
FOR ORDERS, TODAY, THIS COURT MADE THE FOLLOWING:
                                    :2:



                               ORDER

The petitioner is the wife who has presented this

petition assailing the order passed by the Family Court,

Dharwad (for short, 'the Family Court), by which, her

husband's request to summon the Doctor to produce

documents relating to her alleged abortion has been granted.

2. A proceeding for dissolving the marriage on the

ground that the wife had treated the husband with cruelty

and that she had deserted him for a continuous period of two

years was initiated by the husband. In this petition,an

allegation was indeed made about the adulterous life that his

wife was leading, though divorce on the ground that the wife

had a voluntary sexual intercourse with another person was

not raised.

3. In addition to the divorce proceedings, a

proceeding for maintenance under Section 125 of the

Criminal Procedure Code, 1973 had also been initiated by the

wife.

4. In the proceedings for divorce, an application was

filed to issue a direction to one Dr.Smita of Dr.Ramanagouda

Hospital, Malapur Cross, Dharwad to produce the entire case

details (Including declaration letter, undertaking letter, daily

summary report sheet, doctor report, scan copy and other all

relating copies) and also to give evidence on the said

documents in respect of wife who was stated to have been

treated under Patient I.D.No.30386.

5. In the affidavit in support of the said application, it

was stated that in the maintenance proceedings, an

application had been filed and the same was allowed and a

direction had been issued to the Dr.Ramangouda Hospital

Authority to submit the medical records and to give evidence.

It was stated that since the present proceeding was filed

seeking for dissolution of marriage by a decree of divorce and

that was the main case, the said records needed to be

summoned.

6. It was stated that since the husband had taken the

specific contention that the wife was having an illicit

relationship and there was clear evidence that she became

pregnant, the said documents were necessary to establish the

contention.

7. It was stated that the wife had infact undergone an

abortion on 21.11.2020 under Patient I.D.No.30386 and the

same had been suppressed. It was stated that though the

doctor had been summoned in the maintenance proceedings,

only some of the documents were produced and not all of

them were produced and since the petition for dissolution of

marriage was the main case, these documents needed to be

produced in these proceedings.

8. This application was stoutly opposed by the wife.

She stated that if the records were summoned, the

confidentiality that was required to be maintained by the

hospital would be violated. It was also stated that the

documents sought to be produced, even if true, would not

establish or prove the adulterous life being led by her.

9. The Trial Court, after hearing, has proceeded to

allow the application mainly on the ground that the

documents maintained by the Doctor of a Private Hospital

were private documents. The Court reasoned that the said

private documents were related to one of the parties and

since the husband, by virtue of his legal relationship with his

wife, was entitled to obtain the records concerning his wife.

The Family Court took the view that there was no question of

Hospital Authorities maintaining secrecy in respect of medical

records of the wife vis-à-vis the husband. The Family Court

also observed that the proposed documents were very much

necessary since it related to the wife and it, therefore,

allowed the said application.

10. It is this order of summoning the medical records

which is the subject matter of this writ petition.

11. The learned counsel for the petitioner-wife

contended that the medical records of a person are absolutely

private to the person concerned and the same cannot be

summoned by any person including the husband. He

submitted that the husband by virtue of a legal relationship

with his wife does not possess a right, either in law or in

equity, to know or procure the medical records of his wife.

12. He also submitted that in proceedings for divorce, if

a husband is permitted to call for medical records of his wife

and seek to publish her private details, the same would be a

gross violation of the "Right to privacy" guaranteed under

Article 21 of the Constitution of India.

13. Learned counsel also contended that the Family

Court by summoning the medical records pertaining to the

wife was essentially transgressing the confidentiality that was

required to be maintained between a Doctor and his patient.

He submitted that the confidentiality that is required to be

maintained between the doctor and his patient cannot be

broken even at the instance of one of the spouses. He

submitted that by summoning the medical records from the

Doctor and asking her to adduce evidence, the Court was

essentially forcing the Doctor to act unethically and violate

her oath of secrecy to her patient.

14. Learned counsel for respondent Smt Sumangala

A.Chakalabbi, on the other hand, contended that the

documents mentioned would establish the adulterous life that

the wife was leading and her medical documents relating to

the abortion would be the clinching piece of evidence that

would establish the allegations of her adulterous life without a

shadow doubt.

15. She submitted that since the Doctor had already

been summoned in the maintenance proceedings and had

adduced evidence, there was no impediment for the Family

Court to once again summon the Doctor. She also

highlighted the fact that the order passed in the maintenance

proceedings were accepted by the wife and therefore in the

divorce proceedings she could not be permitted to raise any

objections.

16. Learned counsel for the respondent further

submitted that it was settled law that the Courts could issue

an appropriate direction to a party to be subjected toa

medical examination as it would be difficult for the Court to

arrive at a conclusion as to whether the allegations made by

the spouse against the other spouse was correct or not. She

submitted that since the records would establish the veracity

of allegations made by the husband there was no infirmity or

illegality in the order.

17. She submitted that summoning of the records of the

wife would not amount to an invasion of the right of privacy.

She sought to lay emphasis on the fact that the personal

liberty guaranteed under Article 21 of the Constitution of

India cannot be treated as an absolute right and this right to

privacy cannot apply to a case where a spouse was seeking

for divorce, even assuming that the wife did possess this

right.

18. She relied upon the judgments rendered by the

Hon'ble Supreme Court in the case of Sharda v. Dharmpal,

reported in AIR 2003 SC 3450 and in the case of MR.'X' v.

Hospital 'Z', reported in (1998) 8 SCC 296 and an article

regarding Medical privileges published in the Canadian Bar

Review.

19. Learned counsel Smt. Sumangala A. Chakallabbi

also sought to place reliance on Regulation 7.14 of the Indian

Medical Council (Professional Conduct, Etiquette and Ethics)

Regulations, 2002 (for short, 'the Regulation, 2002') to

contend that it was legally permissible for a registered

medical practitioner to disclose the secret of the patient that

had come to his knowledge or which was confided to him by

the patient during the discharge of their profession. She

stated that when a Court of law passes an order directing the

medical practitioner to divulge the information relating to the

patient, the medical practitioner was bound to disclose the

same. She submits that since it was permissible for the

courts to order the medical practitioner to disclose the secret

of a patient, the application filed was legally tenable and did

not amount to any infringement of the Doctor-patient

confidentiality.

20. Having heard the learned counsel for the parties,

the following issue arises for consideration in this writ

petition.

"Whether, it is permissible for a Family Court to summon the medical records of a spouse on the request of the other spouse, especially when it pertained to records relating to any procedures relating to the reproductive choices of the spouse?"

21. The Regulations framed for the professional conduct

of the medical practitioners require the medical practitioner to

give a declaration at the time of registration. One of the

declarations given by the medical practitioner is "I will

respect the secrets which are confided in me". Thus, the

medical practitioner is statutorily bound to maintain secrecy

in respect of the things which are confined to the medical

practitioner by the patient. This declaration, fundamentally,

establishes that the Doctor-Patient relationship is one of

absolute trust and should not be broken.

22. Regulation 7.14 of the Regulation, 2002, upon

which, reliance was placed is a reflection of this declaration.

The said regulation reads as follows :

"7.14. The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his/her profession except -

           i)      in a court of law under orders of the
                   Presiding Judge;
           ii)     in circumstances where there is a serious

and identified risk to a specific person and / or community ; and

iii) notifiable diseases."

In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately."

23. As could be seen in Regulation 7.14 of the

Regulations, 2002, there is an absolute embargo on the

medical practitioner from disclosing the secrets of a patient

that comes within the knowledge of the medical practitioner

during the discharge of his professional duties.

24. To this embargo, however, there are three

exceptions. The first exception, with which we are concerned,

is when a presiding Judge passes an order calling upon the

medical practitioner to divulge a secret that he is aware of

regarding his patient. Thus, unless there is a specific order of

a Judge presiding over a Court of law, no medical practitioner

can disclose the secrets that he has become privy to during

the discharge of his professional duties.

25. Merely because a Court of law possesses that power

to direct the medical practitioner to divulge a secret confided

with a medical practitioner, that power would not and should

not be exercised merely for the asking or routinely. The

power to direct a medical practitioner to act in violation of his

declaration should be exercised only for strong and

compelling reasons and would be more or less be exercised

only when an element of public interest was involved.

26. The Courts, therefore, cannot direct medical

practitioners to disclose the secrets that they are privy to

Divorce proceeding, by their very nature, is adversarial and

more often than not a bitter and acrimonious battle, at times

initiated to tarnish the reputation of the warring spouse.

Thus, the power of the Court to direct the medical

practitioners to divulge secrets that are confided to them

should be exercised very sparingly and only for exceptional

reasons.

27. In order to get over the bar imposed on the medical

practitioners to disclose the secrets of the patients to which

they are privy, the Courts should not be asked to exercise

their power to secure medical records. If this is permitted, it

would mean the Medical practitioner is required to divulge the

secrets that the patient has disclosed to him contrary to his

professional ethics only because an adversary in litigation

wishes to use it to non-suit the other.

28. It is to be kept in mind that the medical records of

an individual are very private and are not for public

consumption. If the medical record of a person is private to

him, a direction to his medical practitioner to produce the

medical records or divulge any secret that he is privy to it

would essentially amount to infringing the fundamental right

of privacy guaranteed to an individual, which emanates from

the "Right to Life" granted under Article 21 of Constitution of

India.

29. In fact, in the case of K.S.Puttaswamy and

another v. Union of India and others, a bench presided

over by 9 judges, the Hon'ble Apex Court has observed as

follows:

248. Privacy has distinct connotations including

(i) spatial control ; (ii) decisional autonomy ; and (iii) informational control. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person. With regard to informational privacy, it has been stated that :

".... Perhaps the most convincing conception is proposed by Helen Nissenbaum who argues that privacy is the expectation that information about a person will be

treated appropriately. This theory of "contextual integrity" believes people do not want to control their information or become inaccessible as much as they want their information to be treated in accordance with their expectation (Nissenbaum 2004, 2010, 2011)".

"323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of out culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being."

30. Thus, things that are private to an individual would

have to be respected by one and all and every endeavour

should be made to ensure that the privacy of the individual is

not violated.

31. The matter would also have to be looked at from a

different point of view. S. 126 of the Evidence Act, which

deals with professional communications, grants immunity to

the professional named therein, i.e., a Vakil, barrister, or

pleader from divulging the communication made to him by his

client. S. 151 and S. 152 of the Indian Evidence Act prohibits

indecent or scandalous questions and also question which are

intended to insult or annoy the witnesses from being asked. A

conjoint reading of S. 126, S. 151 and 152 along with the

Regulations would lead to the inference that a Doctor would

also be entitled to the same privilege that the Advocate

enjoys in the matter of his professional communication with

his client.

32. It is therefore clear that Courts cannot as a matter

of course summon medical records or direct the Doctors to

give evidence about the medical condition of a litigant.

33. Though S. 14 of the Family Courts permits the

Family Court to receive evidence, which is otherwise

inadmissible under the Evidence Act, in order to assist it in

dealing effectually with a dispute, that power cannot be

extended to commit a breach of the sacred obligation cast on

a medical practitioner to maintain the Doctor-patient

confidentiality or to intrude on the fundamental right of

privacy guaranteed to a citizen.

34. The only exceptions to this bar could be when one of

the parties to the lis is under a legal disability which is

probably handicapping him in some way and in order to

safeguard his legal rights, an evaluation of his physical or

mental health would be necessary. In other words, when a

party is under a disability, in order to ascertain the disability,

the Courts can in appropriate cases direct the parties to

subject themselves to a medical examination. The exercise of

this right is to obviously protect the litigant and not to extract

some private information from the litigant which may aid the

opposing litigant.

35. It is in this context that the Hon'ble Apex Court has

stated in the case of Sharda v. Dharmpal, reported in AIR

2003 SC 3450 stated that in any appropriate case the

Courts are empowered to subject a party to subject himself to

a medical examination. Therefore, this judgment, on which

strong reliance was placed by Smt. Chakalabbi, cannot be

used to as support the request of the husband in the instant

case.

36. The other judgment relied upon by the learned

counsel which has been reported in (1998) 8 SCC 296 can

also be of no avail to the husband. In the said judgment the

Hon'ble Apex Court has clearly held that only if a

circumstance exists in which public interest of even true

private facts are essential, then it would not amount to

invasion of the right of privacy. In fact, the Hon'ble Supreme

Court has stated that a Doctor and patient relationship is

essentially a matter of trust and confidence between the two

and the Doctors are morally and ethically bound to maintain

secrecy.

37. The Hon'ble Supreme Court has merely clarified that

this privilege of the Doctor is not absolute and can be lawfully

excluded for the prevention of crime, public disorder,

protection of health, or morals or protection of life or freedom

of others. This indicates that disclosure of private facts can be

ordered only if it is in the public interest.

38. Now coming to the facts of this case, it would be

significant to notice that the proceedings initiated for a

divorce by the husband is not on the ground that the wife

had, after solemnization of the marriage, voluntary sexual

intercourse with any person other than his/her spouse (i.e.,

under 13(1) (i) of the Hindu Marriage Act, 1955).

39. The grounds under which the divorce is sought for

by the husband is that the wife had treated him with cruelty

and she had deserted him for a continuous period of not less

than two years (i.e., under Section 13(1) (ia) and (ib) of the

Hindu Marriage Act, 1955). If it is the case of the husband

that his wife, by leading an adulterous life, had inflicted

cruelty on him this allegation will have to be proved with

cogent evidence in a manner known to law. This allegation

cannot be proved by summoning the private medical records

of the wife.

40. The Doctor, even if summoned, cannot by the

production of medical records, assist the Court in concluding

as to whether the wife had voluntary sexual intercourse with

a person other than the husband. If the husband can prove

that he had no access to his and if he can establish that his

wife had or was having any illicit sexual relationship with

another person, the same will have to be established by

appropriate evidence as provided under the Evidence Act.

41. In any event, the illicit relationship of a spouse

cannot be proved by securing his or her private medical

records. In fact, if this approach is to be accepted, it would

amount to the destruction of the entire concept of Doctor and

patient confidentiality and also drag the Doctor into a marital

dispute.

42. I am therefore of the view that the impugned order

cannot be sustained and the same is hereby set aside.

Consequently, I.A.No.IX shall stand rejected and the Writ

Petition is allowed.

Sd/-

JUDGE CKK