M.R. Manoharan vs Selvi

S.S. Subramani, J.—Petitioner is the husband. He filed an application before the Family Court to declare that his marriage with the

respondent is a nullity. It is his case that the wife, respondent herein, is mentally retarded and this fact was suppressed at the time of marriage. If

only he Was aware about her mental conditions, he would not have married her. In the main petition, he has given various circumstances to

substantiate his case that his wife is a mental patient.

Counter-statement was filed by the wife denying all these allegations. Pending proceeding, petitioner herein filed M.P. No. 50 of 1993 for

direction from the Family Court that the wife must be sent for medical examination.

In answer to the said request, the wife submitted that she has already been examined by her family doctor, and petitioner (husband) also

requires some medical examination, and if he is not prepared, she is also not willing to submit herself for examination.

In this I.A.50 of 93, evidence was taken, which consists of the evidence of P.W.1, a Doctor who is alleged to have treated the wife.

After evaluating his evidence and other circumstances, the lower Court dismissed the application. The same is challenged under Art. 227 of the

Constitution of India. I do not think that the petitioner is entitled to any relief in this Revision.

In the petition itself petitioner does not want to seek the appointment of a guardian for the respondent/wife. Notice has been served on her, and

she has entered appearance and filed counter-statement denying the allegations. To the petition filed by the husband to send her for medical

examination, written objection was filed by her stating that she has been examined by her family Doctor. She has also filed a Certificate. Before this

Court also, she has entered appearance through counsel, and no guardian is appointed. The only evidence adduced before the Court below was

the evidence of P.W.1. The lower Court has assessed the entire evidence of P.W.1 and has come to the conclusion that it is very doubtful whether

the petitioner, (sic) In fact there is a statement in the evidence of P.W.1 that the wife seems to be depressed because of the ill-treatment meted out

to her. That is also stated in the Order of the lower Court.

In ''Marriage & Divorce'' -Fifth Edition (1997), at page 57, the learned author, A.N. Saha has said that when the respondent refuses to have

medically examined, the Court cannot compel the respondent to undergo medical examination, but Court is entitled to draw an adverse inference

from such refusal. At page 322, the learned author has said that ''in case of insanity, it is not open to a party to have the opponent compulsorily

medically examined. An adverse inference can only be drawn from refusal to submit to such examination''. Learned author has further said that ''in

case of allegation of impotency, a petitioner cannot compel the respondent to have him or her medically examined''.

In 1981 -1- M.L.J. 440=94 L.W.376 (M. Venkatachalapathy v. Saroja alias Thangammal), V. Ratnam, J., as he then was, has held thus:-

It is settled law that a person cannot be directed to be examined medically against her wish. Since the respondent has opposed the application of

the petitioner and also denied the defects in her, it was clear that any medical examination, if ordered, would only be against her wish, which cannot

be done. Though the courts below had not proceeded on this ground, yet the dismissal of the application by the learned District Judge could be

sustained on this ground as well.

The Lower Court has relied on the decision reported in 1995 T.L.N.J.166 (Santhi and another v. P. Subbusamy), wherein, Raju, J., as he then

was, has held thus:

On a careful consideration of the submissions of the learned counsel appearing on either side and also the principles laid down in the various

decisions referred to supra, I am of the view that the trend as also the preponderance of Judicial opinion is against the Courts exercising any

compulsion against his or her wish and that too after the coming into force of the Constitution of India. The facts and circumstances of the case

before me also do not appear to be justifying such an exercise of power....

The legal position is clear that the petitioner will have to prove the mental disorder de hors the medical examination and he cannot compel the wife

to undergo the examination. On available materials and taking into consideration the circumstances, it is clear that the wife is in a position to defend

herself and prosecute the litigation. If that be the case, there cannot be any question of insanity or any mental disorder. It has also come out in

evidence that the wife is a graduate and she was also employed at the time of her betrothal, and she resigned only thereafter. She has also

undergone her Post-Graduate course, though she has not passed all the subjects. From her counter-statement also, it is clear that no case has been

made out that she is suffering from any mental disorder. The Order of lower appellate Court is correct and no interference is called for. The Civil

Revision Petition is dismissed with costs. Advocate''s fee Rs. 2,500/-. Connected CMP is also dismissed consequently.