Kerala High Court
Bivin John vs Minnu Joseph on 10 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
OP (FC).No.42 OF 2021
AGAINST THE ORDER IN I.A. 2/2020 IN OP 1022/2018 OF FAMILY COURT,
KOTTAYAM
PETITIONER/PETITIONER IN O.P:
BIVIN JOHN
AGED 38 YEARS
S/O SURESH JOHN, PULIKKAPPARAMBIL HOUSE,
CHENGALAM P.O.THIRUVARPPU VILLAGE, KOTTAYAM
BY ADVS.
SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENT/RESPONDENT IN TRIAL:
MINNU JOSEPH,
D/O JOSEPH ALEXANDER, MAPPILLASSERIL HOUSE,
KALASANADU, UDUMBANCHOLA TALUK,
IDUKKI DISTRICT-685 554.
R1 BY ADV. SRI.T.P.PRADEEP
R1 BY ADV. SRI.P.K.SATHEES KUMAR
R1 BY ADV. SMT.MINIKUMARY M.V.
R1 BY ADV. SHRI.AJAI JOHN
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.42 OF 2021
2
JUDGMENT
Dated this the 10th day of February 2021
C.S.Dias,J.
The original petition is filed, under Article 227 of
the Constitution of India, to set aside the common
order in I.A Nos.2&3/2020(Ext.P6) in O.P.
No.1022/2018 of the Family Court, Kottayam.
2. The petitioner has filed O.P. No.1022/2018
seeking a decree to declare his marriage with the
respondent null and void, inter alia, on the ground of
fraud. The petitioner filed I.A No.2/2020 to subject
the respondent - his wife to medical examination for
the reasons that she is infertile; that she had
suffered a stroke; that she incapable of having
physical relationship; that she has a disability and
that she had undergone a surgery, which facts were
suppressed from the petitioner at the time of giving
his consent for the marriage.
OP (FC).No.42 OF 2021
3. The respondent filed a written objection to
I.ANo.2/2020, refuting the allegations in the
application. Nevertheless, she filed I.A 3/2020 to
subject the petitioner to medical examination by a
Medical Board, for the reasons that the petitioner is
suffering from erectile dysfunction; that he has low
sperm count; that he has psychological problems
and that he is incapable of having sexual
relationship. The said application was opposed by
the petitioner.
4. The applications were jointly heard and
considered.
5. The Family Court by the impugned order
dismissed the applications on the grounds that the
applications were pre-mature and it could be
considered at a later stage, if felt necessary.
6. Heard Sri.C.S.Manilal, the learned counsel
appearing for the petitioner and Sri.T.P.Pradeep
Kumar, the learned counsel appearing for the
OP (FC).No.42 OF 2021
respondent.
7. The learned counsel for the petitioner
argued that Ext.P6 impugned order passed by the
Family Court is erroneous because the petitioner had
filed I.A No.2/2020 to substantiate his case that the
respondent was suffering from various mental and
physical ailments, which were deliberately
suppressed by the respondent, which tantamounts to
fraud and mis-representation, entitling the petitioner
to a decree of nullity. He submitted that the
reasoning of the Family Court that the applications
were pre-mature is wrong because it is the mandate
under the Code of Civil Procedure that the materials
be placed on record before the commencement of
trial.
8. The learned counsel appearing for the
respondent argued that the attempt of the petitioner
is only to circumvent the judgment dated 24.7.2020
passed by this Court in O.P (FC)245/2020, whereby
OP (FC).No.42 OF 2021
this Court directed O.P.1022/2018 to be disposed of
within eight months from the date of judgment. The
petitioner knowing fully well the time frame fixed by
this Court, is trying to protract the proceeding.
However, the learned counsel admitted the fact that
the respondent has also filed an application to
subject the petitioner for medical examination. He
finally contended that even if this Court set asides
Ext.P6 order, both the petitioner and the respondent
be directed to appear before a competent Medical
Board and be subjected to medical examination, so
that the controversy regarding the physical and
mental health of the parties could be ascertained,
which would help the court in determining the truth
and deciding the 'lis'. He, however, prayed that the
time period fixed by this Court may be directed to
be adhered to by the Family Court, while disposing of
the cases between the parties.
OP (FC).No.42 OF 2021
9. A Constitutional Bench of the Hon'ble
Supreme Court in Sharda v.Dharmpal [2003 (2) KLT
243 (SC)] has held that the Court has the power to
order a person to undergo a medical test in a
matrimonial dispute and that there is no violation of
right to personal liberty as enshrined under Article
21 of the Constitution of India. The said legal
position has been reiterated by a Division Bench of
this Court Dr.Smitha Mathew v. Dr.Prasoon
Kuruvila [2010(3) KLT SN 7].
10. Both the petitioner and the respondent have
raised allegations and counter allegations as against
each other regarding their physical and mental
health. Both parties want the other to be subjected
to medical examination. Even though both parties
claim to be in possession of the medical records of
the other party, both have felt that the allegations
regarding each others mental and physical health
OP (FC).No.42 OF 2021
could be assessed and evaluated by a competent
Medical Board.
11. In light of the categoric declaration of law
in Sharda v. Dharmpal and Dr.Smitha v. Prasoon
Kuruvila (supra), there is no doubt that the Court
has the power to order a person to undergo a
medical test in order to determine a matrimonial
dispute.
12. In the above factual and legal background,
we are of the definite opinion that no prejudice would
be caused to either the petitioner or the respondent,
if both of them are subjected to a medical test by a
competent Medical Board, in view of the allegations
and counter allegations levelled against each other
in their respective applications, to assess and
evaluate their mental and physical health/ailments.
13. The findings of the Family Court that the
applications are pre-mature and can be decided at a
OP (FC).No.42 OF 2021
later stage are erroneous because it would always
be adviceable that necessary steps to be taken to
substantiate one's pleadings before the
commencement of trial so that both parties would
know the opposite sides defence.
14. In the result, in exercise of the supervisory
power of this Court, we allow the original petition as
follows:
(i) The impugned Ext.P6 common
order is set aside.
(ii) I.A Nos.2 & 3/2020 filed by
the petitioner and the respondent are
allowed by directing the Superintendent
of the Medical College Hospital,
Kottayam to constitute a competent
Medical Board, at the earliest and the
medical test of both the petitioner as
well as the respondent be conducted at
the expense of both parties, in order to
ascertain the alleged mental and
physical health/ailments of both parties.
(iii) The parties are directed to
appear before the Superintendent,
Medical College Hospital, Kottayam on
OP (FC).No.42 OF 2021
1.3.2021 along with copy of the
judgment and the medical records in
their possession, which may be handed
over to the Superintendent.
(iv) The Superintendent of the
Medical College Hospital, Kottayam
shall after the examination is over, as
expeditiously as possible, forward the
medical report to the Family Court,
Kottayam at Ettumanoor.
(v) On receipt of the medical report
by the Family Court, every endeavour
shall be made to dispose of O.P.
Nos.1022/2018, 1474/2018, 44/2019 and
M.C 219/2018, in accordance with law,
as expeditiously as possible, at any rate
within a period of six months from the
date of receipt of the report of the
Medical Board.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
ma/11/2/2021 JUDGE
/True copy/
OP (FC).No.42 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION OP(DIV0 NO
1022/2018 DATED 10.8.2018 FILED BEFORE
THE FAMILY COURT, KOTTAYAM
EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED
30.6.2019 IN OP(DIV) NO 1022/2018
EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND
PETITION IA NO 2/2020 IN OP(DIV)
1022/2018 DATED 22.9.2020
EXHIBIT P4 TRUE COPY OF THE OBJECTION IN OP
1022/2018 DATED 12.10.2020
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND
PETITION IN OP 1022/2019 IN OP
1417/2018, OP 44/2019 MC NO 219/2018
EXHIBIT P6 TRUE COPY OF THE COMMON ORDER IN IA
2/2020 & IA 3/2020 IN OP 1022/2019 OP
1474/2018, OP 44/2019 M.C.NO 2019/2018
PASSED BY THE FAMILY COURT, KOTTAYAM
