Uttarakhand High Court
WPMS/1666/2021 on 31 August, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 31ST DAY OF AUGUST, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) NO. 1666 OF 2021
BETWEEN:
Vaybhav Verma ... Petitioner
(By Mr. Amar Murti Shukla, Advocate)
AND:
Smt. Priya Verma @ Pooja Verma ... Respondent
(None present for the respondent)
JUDGMENT
1. Petitioner (Vaybhav Verma) is husband of
the respondent (Smt. Priya Verma @ Pooja Verma).
He filed a divorce petition under Section 13(1)(i-a) of
Hindu Marriage Act, 1955 before Judge, Family Court,
Haldwani, District Nainital against his wife
(respondent herein), which is registered as Suit No.
114 of 2017.
2. In his petition, petitioner has sought
divorce on the ground of cruelty. Respondent filed a
written statement, wherein she has denied the
allegation of cruelty levelled against her, by the
petitioner.
3. Petitioner moved an application dated
23.05.2019 with the prayer that respondent be
directed to produce in Court her medical records
regarding the treatment received by her in respect of
injuries sustained in a road accident, in which her
backbone (L-1) was fractured and also to get
respondent medically examined by a Competent
Board of Medical Experts to ascertain whether she is
suffering from a medical condition, namely, Spinal TB-
Pott's Spine since before her marriage.
4. The said application has been rejected by
learned Judge, Family Court, Haldwani vide order
dated 12.08.2021. Aggrieved by the said order, this
petition under Article 227 of the Constitution of India
has been filed.
5. Heard Mr. Amar Murti Shukla, learned
counsel for the petitioner and perused the record.
6. Mr. Amar Murti Shukla, learned counsel
appearing for the petitioner submits that the Family
Court is always empowered to pass an order for
medical examination of the spouse in an appropriate
case because when such a report is received, that
would facilitate the Court in giving a positive
conclusion regarding medical condition of the spouse.
In support of this contention, Mr. Shukla has placed
reliance upon the law laid down by Hon'ble Supreme
Court in the case of Sharda Vs. Dharmpal, reported in
(2003) 4 Supreme Court Cases 493 and Lalit Kishore
Vs. Meeru Sharma reported in AIR 2010 SC 1240.
7. Learned Family Court has considered the
prayer made by the petitioner in great detail and has
rejected the same by giving valid reasons. It has
been held by learned Court below that petitioner had
sought divorce on the ground of cruelty and
respondent had not set up any defence in her
statement that any fracture in L-1 region was caused
due to any violence or maltreatment at the hands of
the petitioner or his family members. It has further
been held that in his divorce petition, petitioner had
not set up the case that respondent had concealed
her medical history from the petitioner at the time of
contracting marriage and further that it was not
petitioner's contention that he had faced problem in
having his wife treated or that respondent's medical
condition affected the matrimonial relation between
the parties. It was further held that as per the own
showing of the petitioner, respondent had not taken
advantage of her health condition to the detriment of
the petitioner and by making such prayer, petitioner
is trying to carve out altogether a new case.
8. Although, copy of the divorce petition has
not been brought on record, however, learned counsel
for the petitioner fairly submits that the prayer made
by petitioner in his application is de-hors the
pleadings made in the divorce petition.
9. It is true that Hindu Marriage Act or any
other law governing the field does not contain an
express provision empowering the Court to issue
direction upon a party in a matrimonial proceeding to
compel him/her to submit to a medical examination.
However, it does not preclude the Court from passing
such an order. The Court is always empowered to
satisfy itself as to whether a party before it suffers
from a medical condition, for the purpose of taking
evidence on the ground for which the matrimonial
proceeding was started.
10. It is well settled that primary duty of the
Court is to see that the truth comes out, therefore,
even in the absence of any express provision in the
statute, Court has inherent power in an appropriate
case under Section 151 of the Code of Civil Procedure
to pass any order for doing complete justice between
the parties.
11. In the case of Sharda Vs. Dharmpal
(supra), Hon'ble Supreme Court held that a
matrimonial Court can order for medical examination
of the respondent with the caveat that such power
has to be exercised only if the applicant has a strong
prima facie case and there is sufficient material before
the Court for passing such order. Similar view was
expressed by Hon'ble Supreme Court in the case of
Lalit Kishore Vs. Meeru Sharma (supra).
12. Now, coming to the facts of the present
case, the medical records of the respondent and the
opinion of the medical experts regarding her medical
condition, if produced before the Court, will not help
the Court in arriving at any conclusion. The evidence
sought to be procured by the petitioner has no
relevance to the ground of cruelty taken by the
petitioner in his divorce petition. In his divorce
petition, petitioner had not made any assertion
regarding the injury sustained by the respondent or
her medical condition, which petitioner now wants to
ascertain through respondent's medical examination.
13. In such view of the matter, any interference
with the order passed by learned Family Court would
be uncalled for. The judgments relied upon by the
petitioner; thus, do not support the case of the
petitioner.
14. Accordingly, writ petition fails and is hereby
dismissed.
15. There will be no order as to costs.
(MANOJ KUMAR TIWARI, J.)
Aswal
