Ramesh C.K vs Dhanya
2023 Latest Caselaw 1384 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                            &
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                  O.P.(FC) NO. 39 OF 2023
 AGAINST THE ORDER DATED 14.12.2022 IN I.A.NO.11 OF 2022
  IN O.P.NO.196 OF 2018 ON THE FILE OF THE FAMILY COURT,
                          THRISSUR
PETITIONER:

         RAMESH C.K.,
         AGED 55 YEARS, S/O KUMARAN,
         CHERKKARA THANDAYAN HOUSE,
         P.O. THRITHALOOR WEST, THRISSUR DISTRICT,
         PIN - 680619.
         BY ADVS.
         S.VINOD BHAT
         ANAGHA LAKSHMY RAMAN
         GREESHMA CHANDRIKA.R


RESPONDENT:

         DHANYA
         AGED 45 YEARS, D/O EDASSERY DHARMAPALAN,
         KAIPAMANGALAM VILLAGE, CHENTHRAPPINY DESOM,
         KARIPAMANGALAM P.O., THRISSUR DISTRICT,
         PIN - 680681.

     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                               2
O.P.(FC) No.39 of 2023


                         JUDGMENT

P.G. Ajithkumar, J.

The respondent in O.P.No.196 of 2018 on the file of

the Family Court, Thrissur has filed this Original Petition

under Article 227 of the Constitution of India. He seeks to

set aside Ext.P9 order dated 14.12.2022 in I.A.No.11 of

2022 in O.P.No.196 of 2018.

2. Heard the learned counsel appearing for the

petitioner in detail.

3. The respondent filed O.P.No.196 of 2018 seeking

dissolution of her marriage with the petitioner under

Section 13 of the Hindu Marriage Act, 1955. I.A.No.5 of

2021 was filed by the petitioner in O.P. seeking counselling

of the parties by a clinical psychologist. That application

was dismissed as per Ext.P3 order. That order was

challenged in O.P.(FC) No.403 of 2021. An interim order,

Ext.P4 was passed in that Original Petition on 10.08.2021

instructing the Family Court to interact with the parties in

O.P.(FC) No.39 of 2023

the presence of the children and make an endevour for an

effective settlement. During the course of interaction in

terms of the said order, the Family Court found that

counselling of the parties was required and accordingly, the

parties were referred to a clinical psychologist. Later, the

petitioner was sent for assessment by a Medical Board. The

Medical Board issued Ext.P5 evaluation report, wherein it

was observed that being the issue related to a marital

discord, presence of the wife was also required for a proper

assessment. In the light of that report, the petitioner has

filed I.A.No.9 of 2022 to refer the respondent-wife for

evaluation by the Medical Board. That I.A. was allowed and

the respondent was directed to appear before the Medical

Board for evaluation. She, however, did not turn up. The

petitioner also filed I.A.No.11 of 2022 seeking to keep the

proceedings in O.P.No.196 of 2018 till a report of the

Medical Board is received. As per the order dated

14.12.2022, the Family Court closed I.A.No.11 of 2022

O.P.(FC) No.39 of 2023

recording as follows:-

"Report of the Medical Board stating that the petitioner not appeared before the Medical Board is received. Hence the I.A. is closed."

4. The petitioner wants to set aside Ext.P9 and direct

the respondent to appear before the Medical Board in terms of

the directions contained in Ext.P6. The learned counsel

appearing for the petitioner would submit that the respondent

undertook before the Family Court to appear before the

Medical Board for counselling and as such she is bound to

honour the said undertaking. Since the Medical Board is of the

opinion that unless the respondent-wife also is appeared, a

proper evaluation would not be possible and in such

circumstances, interference by this Court is highly essential.

The endeavour of this Court as could be seen from Ext.P4 and

the Family Court as is evident from Ext.P6 was to reach an

amicable settlement between the parties. The learned counsel

therefore would submit that the respondent shall have to be

directed to appear before the Medical Board.

O.P.(FC) No.39 of 2023

5. A settlement is possible only if both parties to the

lis agree. This Court as well as the Family Court made every

endeavour to find out a settlement of the disputes between

the parties. Being a marital dispute and welfare of the

children is involved, it is only appropriate to attempt for a

settlement of the disputes. But that cannot be fulfilled by

compelling a party. The purpose of medical and

psychological evaluation ultimately is to decide the dispute

in the lis, if an amicable settlement is not possible. When

the respondent refuses to appear before the Medical Board,

despite the direction of the Family Court, an adverse

inference may follow if a decision on the question is

ultimately to be taken.

6. In such circumstances, a direction to the

respondent to appear before the Medical Board is not liable

to be issued by this Court in exercise of the powers under

Article 227 of the Constitution of India. Considering the

matters transpired before the Family Court, we do not think

O.P.(FC) No.39 of 2023

that Ext.P9 order suffers from any infirmity or illegality.

Therefore, we are of the view that Ext.P9 order does not

require interference.

Resultantly, this Original Petition is dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

O.P.(FC) No.39 of 2023

APPENDIX OF OP (FC) 39/2023 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE O.P. NUMBERED AS O.P. 196/2018 BEFORE FAMILY COURT, THRISSUR EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 02-

08-2019 IN I.A. 3491/2019 IN O.P.

196/2018 ON THE FILES OF FAMILY COURT, THRISSUR EXHIBIT P3 THE TRUE COPY OF THE ORDER DATED 29-

07-2021 IN I.A. 5/2021 IN O.P 196/2018 ON THE FILES OF FAMILY COURT, THRISSUR EXHIBIT P4 THE TRUE COPY OF THE INTERIM ORDER DATED 10-08-2021 IN O.P.(F.C.) 403/2021 ON THE FILES OF THE HON'BLE HIGH COURT OF KERALA EXHIBIT P5 THE TRUE COPY OF THE REPORT DATED 25-

11-2021 SUBMITTED BY THE MEDICAL BOARD EXHIBIT P6 THE TRUE COPY OF AN ORDER DATED 03-08-

2022 IN I.A. 9/2022 IN O.P. 196/2018 ON THE FILES OF FAMILY COURT, THRISSUR EXHIBIT P7 THE TRUE COPY OF THE LETTER BY GOVERNMENT MEDICAL COLLEGE HOSPITAL DATED 28-09-2022.

EXHIBIT P8 THE TRUE COPY OF THE I.A. 11/2022 DATED 25-10-2022 IN O.P.196/2018 ON THE FILES OF FAMILY COURT, THRISSUR EXHIBIT P9 THE TRUE COPY OF THE ORDER DATED 14-

12-2022 IN I.A. 11/2022 IN O.P.

196/2018 ON THE FILES OF FAMILY COURT, THRISSUR.