Kerala High Court
Devika M vs Devika M on 10 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942
OP (FC).No.157 OF 2020
AGAINST THE ORDER IN IA NO.611/2019 IN OP 92/2018 DATED 23-01-
2020 OF FAMILY COURT,KOZHIKODE
PETITIONER/RESPONDENT/RESPONDENT:
DEVIKA M.,
AGED 34 YEARS
D/O.LOHITHAKSHAN, MAMIYIL HOUSE, ODUMBRA ROAD,
KUNNATHUPALAM, OLAVAANNA P.O.,
KOZHIKODE DISTRICT - 673 019.
BY ADVS.
SRI.ADITHYA RAJEEV
SRI.ADITHYA RAJEEV
RESPONDENTS/PETITIONER/ORIGINAL PETITIONER:
SHIBIN PRAKASH,
S/O.BRAHMA PRAKASH, AGED 39 YEARS,
PRAKASH BHAVAN, KARUVISSERY P.O., KOZHIKODE
DISTRICT - 673 010.
R1 BY ADV. SRI.SHARAN SHAHIER
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03-03-
2021, THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:
OP(FC) No.157/2020
-:2:-
"C.R."
JUDGMENT
Dated this the 10th day of March, 2021
Dr.Kauser Edappagath, J.
This Original Petition is filed by the wife in a marital dispute
challenging an order passed by the Family Court allowing the
application filed by the husband to constitute a medical board
and to direct the wife to appear before it to assess her mental
condition.
2. The husband is the respondent in this original petition.
The petitioner and the respondent got married on 19/1/2014. The
husband initiated proceedings for divorce before the Court below
u/s 13(1)(iii) of the Hindu Marriage Act on the ground of mental
disorder. The husband took up a contention that the mental
condition of the wife was not normal as she was suffering from
obsessive compulsive disorder as well as borderline personality
disorder. The husband filed a petition before the Court below as
IA No.611/2019 (Ext.P3) to direct the wife to undergo medical
examination for borderline personality disorder before a medical
OP(FC) No.157/2020
board to be constituted for the said purpose. The wife filed
objection statement opposing the same. After hearing both sides,
the Court below allowed the petition as per Ext. P5 order and
directed the wife to appear before the medical board to be
constituted at the Medical College Hospital, Kozhikode to assess
her mental condition. The wife challenges Ext.P5 order in this
Original Petition.
3. We have heard the learned counsel for the petitioner
Sri.T.R.Harikumar and the learned counsel for the respondent
Sri.Sharan Shahier.
4. The learned counsel for the petitioner submitted that
the power of a Family Court to order a person to undergo medical
test ought to be exercised only where the applicant establishes a
strong prima facie case. The counsel further submitted that, in
the absence of any finding that the respondent has established a
prima facie case, the Family Court erred in allowing Ext.P3
petition preferred by the respondent. The counsel also submitted
that subjecting the petitioner to undergo medical examination,
without assigning any reason for issuing such a direction, is in
contravention of the Right to Life of the petitioner guaranteed
OP(FC) No.157/2020
under Article 21 of the Constitution of India. Per contra, the
learned counsel for the respondent submitted that in order to
establish the case set up by the husband that the wife is suffering
from obsessive compulsive disorder and borderline personality
disorder, it is absolutely necessary that the wife is examined by a
medical board to assess her mental condition and that the
respondent has established a strong prima facie case.
5. We have anxiously considered the rival contentions.
The issue arises in a proceedings for divorce initiated by the
husband alleging mental disorder on the part of the wife. It is
settled that the Court has power to direct the parties to the
litigation to undergo a medical test. The Supreme Court of India
in Sharda v. Dharmpal [(2003) 4 SCC 493] has held that even
though the right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of the country under Article 21
of the Constitution of India, a matrimonial Court has the power to
order a person to undergo a medical test and such a direction
need not be in violation of any right to personal liberty. It was
further held that while exercising the power to order a medical
test to be undergone by a person, the Court should exercise
OP(FC) No.157/2020
restraint and there must be strong prima facie case and sufficient
material before the Court to pass such an order. The said decision
has been followed recently by the Division Bench of this Court in
Rajmohan L v. Sindhu P.B. [2020 (5) KHC 447]. It was held that
the Court is always empowered to order medical examination,
provided that the facts and circumstances arising in the case
warrants such an examination.
6. As stated already, the petition for divorce was filed by
the husband invoking S.13(1)(iii) of Hindu Marriage Act (for short
'HMA') alleging that the wife is suffering from mental disorder.
S.13(iii) reads as follows:
"13. Divorce.--(1) Any marriage solemnized, whether
before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
other party--
(i)-(ii)***
(iii) has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the
respondent.
Explanation.--In this clause,--
OP(FC) No.157/2020
(a) the expression 'mental disorder' means mental illness,
arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and
includes schizophrenia;
(b) the expression 'psychopathic disorder' means a
persistent disorder or disability of mind (whether or not
including subnormality of intelligence) which results in
abnormally aggressive or seriously irresponsible conduct
on the part of the other party, and whether or not it
requires or is susceptible to medical treatment; or"
The wife's alleged mental order is an issue to be decided in the
case. In order to get a decree for divorce u/s 13(1)(iii) of HMA, the
petitioner must establish that unsoundness of mind of the
respondent is incurable or his/her mental disorder is of such a
kind and to such an extent that the petitioner cannot reasonably
be expected to live with his/her spouse. The burden of proof of
the existence of requisite degree of mental disorder is on the
spouse making the claim on that state of fact. Medical evidence
for arriving at such a finding would, no doubt, be of considerable
assistance to the Court. Where the Court is satisfied that a real
ground exists to direct a party in the case before it to undergo
medical examination, if the circumstances of the case warrant
such a direction, the Family Court has the power to direct a party
OP(FC) No.157/2020
to appear before a medical board to undergo medical
examination and the question of such action being violative of
Art.21 of the Constitution of India would not arise. The Court
having regard to Art.21 of the Constitution of India must also see
to it that the right of a person to defend himself must be
adequately protected.
7. In the Original Petition, the husband has given
necessary pleadings regarding the alleged mental disorder of the
wife. Few documents have been produced by the husband along
with the original petition to substantiate the contention that the
wife was treated by the psychiatrist for the alleged illness. Those
documents were perused by the Court below before passing
Ext.P5 order. The fact that the wife's alleged mental disorder is an
issue to be decided in the case itself constitutes a prima facie
case. The opinion of the medical board regarding the mental
condition of the wife may be of utmost importance for granting or
rejecting a prayer for a decree of divorce u/s 13(1)(iii) of HMA.
The said opinion is relevant u/s 45 of the Evidence Act. When a
party to a litigation alleges existence of certain facts, the Court
can draw no inference of its existence unless it is proved through
OP(FC) No.157/2020
the manner in which the Evidence Act is envisaged. Therefore,
the Court shall not preclude a party from adducing evidence
which may be relevant in accordance with the Evidence Act to
prove his case. For all these reasons, we hold that the Court
below was justified in allowing Ext.P3. This Court cannot invoke
the jurisdiction under Art.227 of the Constitution of India unless
the findings are highly erroneous or capricious.
Hence, we find no reason to interfere with Ext.P5 order and
accordingly the original petition is dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
Dr.KAUSER EDAPPAGATH
Rp JUDGE
OP(FC) No.157/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF ORIGINAL PETITION FILED
AS O.P.NO.92/2018 DATED 16/01/2018
BEFORE THE FAMILY COURT, KOZHIKODE.
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE RESPONDENT DATED
19/05/2018 IN O.P.NO.92/2018 BEFORE THE
FAMILY COURT, KOZHIKODE.
EXHIBIT P3 A TRUE COPY OF THE AFFIDAVIT ALONG WITH
THE PETITION IN I.A.NO.611 OF 2019 IN
O.P.92 OF 2018 BEFORE THE FAMILY COURT,
KOZHIKODE DATED 04/05/2019.
EXHIBIT P4 A TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER IN I.A.NO.611 OF 2019 IN
O.P.92 OF 2018 BEFORE THE FAMILY COURT,
KOZHIKODE DATED 29/06/2019.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED
23/01/2019 IN I.A.NO.611 OF 2019 IN
O.P.92 OF 2018 BEFORE THE FAMILY COURT,
KOZHIKODE.
