Sarla Rani Gupta vs Bhushanlal

The petitioner who was married to the respondent on 321972 filed an application on 2531972 under Sec.12 of the Hindu Marriage Act in the

court of the District Judge, Jammu for a decree annulling the marriage on the ground that the respondent was a lunatic at the time of the marriage

and continued to be so on the date of the presentation of the petition. The allegation regarding lunacy was denied by the respondent in the written

objections filed by him through his guardian. On 2881973 the court framed the following issues in the petition:

1/ Whether the respondent was a lunatic on the date of the marriage and continued to be so at the time of the presentation of the petition? O. P. P.

2/ Whether the consent of the petitioner was obtained by fraud? O. P. P.

3/ To what relief is the plaintiff entitled? O. P. P.

The petitioner was asked to lead evidence on these issues. Some of the witnesses for the petitioner appeared before the court below whose

statements were recorded. On 2881973 the petitioner made an application before the court below that the respondent was posted at Srinagar but

on account of his lunacy he had left the place of his posting and became violent. A prayer was made in this application that the Advocate for the

respondent may be ordered to produce the respondent in person before the court and the court may order his examination by a medical expert.

On this application the counsel for the respondent was asked by the court whether he would like to produce the respondent in the court. Mr. R.P.

Bakshi, counsel for the respondent, declined to produce the respondent in the court whereupon the court vide its order dated 6111973 directed

the petitioner to lead further evidence. The court recorded the fact of Mr. Bakshi having refused to produce the respondent in the court for being

medically examined but did not assign any reason whatsoever for not directing the respondent to appear in the court for being medically examined.

This order of the learned District Judge is the subject matter of this revision application.

The sole question therefore which arises for consideration is whether the court below should have directed the respondent to appear in person in

the court and whether he could be asked to submit to a medical examination.

Under Order 3 Rule 1 C. P. C. a party can appear through counsel or through an authorised agent unless of course the court directs otherwise.

This provision clearly gives the power to the court to direct personal appearance of a party if the circumstances of the case so justify. The issue

under trial before the court below was whether the respondent was lunatic at the time of the marriage and whether he continued to be so. The

lunacy of the respondent, therefore, was directly in issue before the court below. The personal appearance of the respondent under these

circumstances in my opinion was extremely necessary to enable the court to have an opinion formed as to whether the respondent was a lunatic.

The counsel for the respondent could not be conceded the right to produce or to refuse to produce the respondent in the court. The court was not

required to ask the counsel whether he was prepared to produce the respondent in the court. What was required to be done was to direct the

personal appearance of the respondent to enable the court to come to some conclusion regarding his mental State, after putting questions to him.

He could further be got examined medically and the evidence of the expert could be recorded even as a court witness to help the court to come to

a correct conclusion. Such a power could be available to the court even under Sec.151 of the C. P. C. It is not understandable as to how the

learned District Judge thought fit to rest his judgment on the choice to be made by the counsel for the respondent.

Mr. Davinder Parihar who was appointed as guardianadlitem of the respondent in this court submitted that there was no provision in the C. P.

C. under which the respondent could be ordered to appear in person or could be got medically examined against his wishes. So far as the personal

appearance of the respondent in the court is concerned, as stated earlier, Order 3 Rule 1 C. P. C. provides a complete reply to the argument of

Mr. Parihar. So far as the question of medical examination of the respondent is concerned, Mr. Parihar argued that a direction by the court to the

respondent to submit to a medical examination brings about an undue restriction on his liberty and therefore under no provision of the C. P. C.

could such a direction be issued by the court. According to him, Section 151 of the C. P. C. cannot be called in aid for passing such an order. He

has in support of his arguments relied upon a judgment of the Andhra Pradesh High Court in Pulavarthi Sreeramamurthi v. Pulavarthi

Lakshmikantham reported as AIR 1955 Andh Pra 207. Dealing with a similar question the court in the aforesaid judgment observed as under:

In absence of any statutory provision compelling the medical examination of a party and restricting the enjoyment of personal liberty of that

person, it is not right to rely upon the general or inherent powers of the court under Section 151, C. P. C. to achieve that purpose.

I have considered the facts and the circumstances of that case but I regret my inability to agree with the ratio laid down in the aforesaid

judgment. To me, it appears, that a court trying an issue regarding the mental state of a person has to record a positive finding regarding such a

mental state. While determining that issue the person whose state of mind is in issue must necessarily be before the court. If the right to have that

person medically examined is not conceded to the court it will amount to trying the issue in abstract on evidence which may be indirect. It is not

possible for me to hold that a direction of the court to a person to submit to a medical examination for purposes of obtaining an evidence regarding

his state of mind in any way impinges upon the liberty of that person and restricts the enjoyment of his personal liberty. The medical examination of

a person whose state of mind is the subjectmatter of an issue cannot by any stretch of imagination be deemed to curb his liberty or restrict his

freedom so as to violate any law which upholds or maintains the liberty of a person. The courts of law trying a cause of this nature cannot be made

helpless by rendering them disabled to get a particular thing done the doing of which is extremely relevant and helpful in the determination of the

issue under trial. As a matter of fact the legislature by enacting Section 151 C. P. C. had foreseen the inconceivable contingencies which might

arise in the course of the trial of the issue by a Civil Court. It was for that reason that the power was given to the court to do all that, the doing of

which was not expressly prohibited by the Code and the doing of which was extremely necessary in the interests of justice to enable the court to

come to a correct decision.

The concept of personal liberty has to be looked at from a rational and a reasonable point of view and not from the point of view of a

hypersensitive mind. If the view taken by the Andhra Pradesh High Court were correct highly anomalous and inconsistent results would follow. In a

case of this nature the respondent may not at all choose to be examined medically and there may be no evidence of his state of mind available to

the court and his adversary may not be held to have discharged the onus resting on him. The consequences, therefore, flowing from such an

interpretation are likely to lead to most unjust results, in some cases defeating the very ends of justice. It has not to be forgotten that the

fundamental purpose permeating the whole process of legal proceedings before a court is to arrive at a correct and a just conclusion. It is,

therefore, imperative for a court to lean in favour of an interpretation, which promotes the prospects of the attainment of that purpose.

It is true that Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to

the procedure established by law but to my mind the term ""deprivation of life or his personal liberty"" cannot include within their ambit a case of

medical examination of a person who is a party in the proceedings in the Court and whose state of mind is directly in issue in the case, if the

medical evidence flowing from such an examination can provide an important material for returning a finding one way or the other. In a case in

which the burden of proving insanity or lunacy of a person rests on his adversary, existence of negative evidence in proof of insanity or

unsoundness of mind cannot have the effect of discharging the petitioner's onus. The court may also in such circumstances feel substantially

handicapped in coming to a correct conclusion. The absence of a power therefore to have a party to the cause medically examined shall materially

obstruct the course of justice whereas the concession of such a power to the court would promote such ends and facilitate a correct judgment.

That being the test under Section 151 C. P. C. I am firmly of the view that the power is implied under that section of the C. P. C.

It is a different thing if the court on a consideration of the circumstances of the case declines to exercise that power and rejects the prayer of a

party. In a given case the court may not at all feel the difficulty in arriving at a conclusion on the basis of the material available in the absence of a

medical examination. In such a case the court may justifiably refuse to grant the prayer but the judicial refusal to exercise a power has to be

distinguished from refusal to act on the ground that the Court has no power. In the instant case the court below has assumed that the refusal on the

part of the counsel to produce the respondent in the court for medical examination is sufficient to reject the prayer of the petitioner for the

respondent's examination and it is here that the error has crept in which has vitiated the order impugned in this revision application.

For the foregoing reasons this revision application is allowed and the order of the Court below is set aside. The court below shall consider the

prayer of the Petitioner in the right of the observations made above and pass orders accordingly. In the circumstances of the case the parties shall

bear their own costs.

Revision allowed.