Benny vs Riya
2021 Latest Caselaw 14489 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
      THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                 OP (FC) NO. 147 OF 2021
  AGAINST THE ORDER/JUDGMENT IN OP 1368/2017 OF FAMILY
                COURT,THRISSUR, THRISSUR
PETITIONER:

         BENNY, AGED 53 YEARS, S/O.POULOSE, RESIDING AT
         PULLOCKARAN HOUSE, CHOVVUR VILLAGE, CHOVVUR
         P.O., THRISSUR-680 027.
         BY ADV NIHARIKA HEMA RAJ


RESPONDENT:

         RIYA, AGED 46 YEARS, D/O.SEBASTIAN, RESIDING AT
         CHIRAYATH HOUSE, ERAVIMANGALAM P.O.,
         MUKUNDAPURAM, MANNUMPETTA, THRISSUR-679 340,
         PRESENTLY RESIDING AT CHIRAYATH VEETTIL,
         NADATHARA VILLAGE, THRISSUR-680 751.
         BY ADVS.
         SRI.V.M.SYAM KUMAR
         SMT.P.F.ROSY
         SMT.SNEHA RAJIV


  THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC) NO. 147 OF 2021
                              ..2..



                          JUDGMENT

A.Muhamed Mustaque, J

This original petition was filed by the petitioner in

O.P No. 1368 of 2017 on the file of the Family Court,

Thrissur. The petitioner filed a petition for divorce

under Sec. 10 of the Divorce Act, 1869. In that he filed

an application to refer the respondent to a Medical Board

for undergoing psychometric analysis by a competent Medical

Board. The divorce is sought on the ground of cruelty on

account of the mental condition of the respondent. This

application has been dismissed stating that there were no

specific pleadings and there is no prima facie case to

refer the respondent to a Medical Board.

2. We heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

3. We perused the pleadings. There are sufficient

pleadings in the petition. The Family Court was not

justified in finding that there were no pleadings. The

pleading are referred in paragraph 8, 15, 19 and 20 in the OP (FC) NO. 147 OF 2021 ..3..

petition. However, that doesn't mean merely because such

pleadings are set out in the petition that the party

against whom such pleadings are raised should be referred

for Medical Board for psychometric analysis. The Apex

Court in Sharda v. Dharmpal [(2003) 4 SCC 493]upheld the

power of the Court to direct the parties under litigation

to undergo medical examination. The Apex Court cautioned

that it shall not be in violation of the right to personal

liberty of such person. Therefore, it is only when there

is a prima facie opinion formed, the Court need to refer

the parties to undergo medical examination.

4. The parties are yet to be examined before the

Court. It is submitted by the learned counsel appearing

for the petitioner that the petitioner also may be given

liberty to summon the doctor and the hospital authority

for examining the medical records to show that the

respondent had undergone medical treatment in the past.

5. Having considered the submissions of both

counsel, we are of the view that nothing would preclude

the Family Court in referring the respondent to a Medical

Board, if the Family Court is of the opinion that after

the examination of respondent that the respondent has to

be referred for a Medical Board for assessment of her OP (FC) NO. 147 OF 2021 ..4..

mental state. The petitioner also should be given liberty

to produce any medical records by summoning hospital

authority or doctor. Therefore, dismissal of the present

application will not preclude the Family Court in

reconsidering the matter afresh in the light of the

observations as above. It is made clear that if the Family

Court is of the prima facie opinion that after the

examination of the respondent as well perusing medical

evidence produced, such examination is required, needless

to say, the Family Court shall refer the respondent to the

Medical Board.

With liberty as above, without interfering the present

order, the original petition is disposed of.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

DR. KAUSER EDAPPAGATH JUDGE

PR OP (FC) NO. 147 OF 2021 ..5..

APPENDIX OF OP (FC) 147/2021

PETITIONER ANNEXURE EXHIBIT P1 A TRUE COPY OF OP NO.1368/2017 FILED ON 09.08.2017 PENDING BEFORE THE HON'BLE FAMILY COURT, THRISSUR.

EXHIBIT P2 OBJECTION FILED BY THE RESPONDENT IN OP NO.1368 OF 2017.

EXHIBIT P3 A TRUE COPY OF THE IA NO.01/2020 IN OP NO.1368 OF 2017.

EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED NIL IN OP NO.1368 OF 2017.

EXHIBIT P5 CERTIFIED COPY OF THE ORDER DATED 24.03.2020 IN IA NO.1/2020 IN OP NO.1368 OF 2017.