Smt. Santhi and Another vs P. Subbusamy

D. Raju, J.—The above revision has been filed against the order of the learned Subordinate Judge, Tuticorin, dated 8.9.1994 in LA. No. 61

of 1994 in H.M.O.P. No/63 of 1992 where under the Court below has chosen to allow the application filed in the court below by the petitioner

therein, the respondent herein to direct his wife, the first petitioner herein to appear before the District Medical Board, V.Q. Chidambaranar

District to examine and submit a report relating to the mental condition of the first petitioner.

The respondent has filed H.M.O.P. No. 63 of 1992 in the court below u/s 13(i)(ii) and Section 13(i)(i-b) of the Hindu Marriage Act, 1955,

praying for a declaration that the marriage between the first petitioner and the respondent herein held on 29.4.1990 is a nullity and thereby dissolve

the same. Having regard to the nature and stage of the proceedings in the Court below, it would be inappropriate to deal with the various claims

except referring to the salient features necessary for adjudicating the issue raised before this Court in this revision. The first petitioner and the

respondent were married on 29.4.1990 at Tuticorin and it is stated that they lived together hardly for two weeks and that the first petitioner is

residing thereafter with her parents and for nearly two years, they were living separately. The second petitioner is stated to be the father of the first

petitioner. On the date of the marriage, it is claimed by the respondent, the petitioner in the court below that the marriage could not be

consummated, that subsequently it was found out that the first petitioner was not mentally alright, that she would not understand the question put to

her and her reply would have no reference to the questions put that she would only follow the dictation to her and could not do anything on her

own thinking and she had no mental growth. When a grievance was sought to be made about this to the parents of the wife, it was explained to be

due to the shy nature of the girl and the fact that she normally was not used to go out and that in due course, it may be alright. In spite of the

respondent taking the first petitioner to her parents'' house, it was claimed that there was no improvement in her behaviour, and, therefore, no

consummation took place. It is stated that she lacks understanding about her obligations, that her growth of mental condition was such she could

not understand anything and, therefore, she was unfit to be a partner and help-mate in life for the respondent. It is also stated in the court below

that the wife was taken by her parents to Dr. Vijayarangam Clinic where she was treated for mental illness, that when the respondent went to call

on her at the hospital, she did not even recognize him and, therefore, after exchange of notices, the respondent was driven to the necessity of filing

the petition for divorce.

The first respondent in the court below, the first petitioner herein filed a counter statement disputing and denying meticulously every one of the

averments and claim made in the petition and stated that the claims made by the petitioner therein about the mental condition of the first petitioner

was all invented and false. According to the first respondent, the marriage was consummated with even on the first day of the marriage and the

respondent used to have sexual intercourse with the first petitioner every day and that there was no truth in the claim about the allegation that she

lacked sufficient mental growth. While contending that she lead a normal life with the respondent and had always been a help-mate to him and not

a burden, it is claimed that she has good understanding capacity sometimes better than even the respondent and, therefore, the claims to the contra

are false. It was also stated that the problems started with the dowry demand and ill-treatment of the first petitioner since the parents of the

respondent were not satisfied with the presents awarded and the dowry granted. It is also stated that she never underwent any treatment with Dr.

Vijayarangam, that at the compulsion of the respondent, the second petitioner and two others took her to the Doctor who said that the first

petitioner was mentally sound and she does not require any treatment and the averments are invented and that, therefore the petition does not

deserve to be countenanced.

The trial has been commenced and as a matter of fact, the first petitioner herein has also been examined as R.W.1. At that stage, the respondent

herein filed the application in I.A. No. 61 of 1994 seeking for a direction to the first petitioner to appear before the Medical Board,

Chidambaranar District for the purpose of observing the first petitioner''s mental condition and mental growth with reference to her age and report

to the Court, the result of the observation and examination made by the Medical Board. This application was opposed on the ground that the fact

that the first petitioner has been examined in court to give evidence in the very case and the way and manner in which she had answered every one

of the questions put to her would show that she is more intelligent than the respondent and that there is no need for issuing the directions as prayed

for. It is also contended that since the respondent could not prove his allegations, he is trying to use the device of getting some false report or

opinion from the Doctors to help his case and the fact that the petitioner did not move for orders to examine her, as now claimed before the

commencement of the trial, the examination and cross-examination of the first petitioner themselves would show that the move is not bona fide. It

has been stated that she was in the box for more than two hours and answered well all the questions put and that the claim to the contra for

subjecting her again to medical examination is not tenable. On a consideration of the submissions on both sides, the court below allowed the

application on the ground that allowing the application would be in the interest of both parties since a peaceful married life would require mutual

understanding and cordiality and if the first petitioner is found to be really suffering from mental disorder, there could be no peace of life. It is in

such circumstances that the application came to be allowed. Hence, the above revision.

Mr. William learned Counsel appearing for the petitioners, contended that the order of the court below is unsustainable in that it had no power

to compel a party to undergo medical examination against his/her will, that the court below ought to have seen that the examination and cross-

examination of the first petitioner would sufficiently prove the false nature of the claim made on behalf of the respondent and that, therefore, there

was no need and scope for ordering the first petitioner to subject herself to medical examination and that too after the evidence on both sides were

closed and the case was adjourned for argument. It was also contended by the learned Counsel that when the court below has recorded its view

that the Judge could himself put questions and ascertain the mental condition and calibre of the person concerned it had committed a grave error in

allowing the application and that the court below ought to have also rejected the application on the ground of laches and belated nature of the

claims.

The learned Counsel appearing for the respondent reiterated the stand taken before the court below and the reasoning of the learned Judge

assigned in the order under challenge. It was also contended that though, no doubt, the court cannot compel a person to subject to medical

examination having regard to the nature of the grievance and the ground on which dissolution is sought for, such examination becomes hot only

relevant, but necessary since a decision on the issue raised would require medical skill and expertise which the court below cannot be allowed to

decide itself effectively in order to render justice to parties. It was also cotended that the order of the court below would help to decide the issue

raised in this petition effectively by doing justice to both parties and, therefore, no exception could be taken to the order of the court below. The

learned Counsel appearing on either side referred to the following judicial pronouncements in support of their respective claims.

In Mohammed Ibrahim v. Shaik Mohammed AIR 1949 Mad. 292, a learned single Judge of this Court had an occasion to deal with an

application taken by the defendant in the suit before the trial court for an order to appoint a Doctor as Commissioner to examine and report about

the mental condition of the plaintiff in the case. When the order as prayed for was granted appointing an expert to examine the plaintiff in that case,

the same came to be challenged by means of a revision before this Court. The court held therein as hereunder:

As regards the power of the court to compel the attendance of the plaintiff it was not disputed before me on behalf of the petitioner that the

court possesses such a power and, indeed, it could not be disputed, in view of the clear language of Order 3. Rule 1, Civil P.C. The proviso to

that rule says:

Provided that any such appearance shall, if the court so directs, be made by the party in person.

This proviso was construed by this Court both in Vaiguntathammal v. Valliammai ILR Mad. 256 : AIR 1918 Mad. 1256 and the later case in

Ayyannadan v. Seeniammal 11 L.W. 289 : AIR 1920 Mad. 213. In Ayyannadan v. Seeniammal 11 L. W. 289 : AIR 1920 Mad. 213, Krishnan,

J. says at p.293:

Order 3, Rule 1, proviso is wide enough to enable the court to direct any party to the suit to appear in person whether he be a minor or a major or

of sound or unsound mind and it may be done at any stage of the suit: see Vaiguntammal v. Valliammai ILR Mad. 256 : AIR 1918 Mad. 1256.

The court has also ample power under Order 16, Rule 14, Civil P.C. to examine not only the parties and the witnesses summoned by them but

also other persons whom the court thinks are necessary. If so much is conceded or established the only point is, has the court no jurisdiction to

make that power effective? It is said that an expert may be examined but the expert should not have the necessary data to form his opinion by

examining the plaintiff. I think the contention so stated reduces the power of the court to a mockery. If a jurisdiction exists in a court, the court has

always the right and duty to exercise that power as effectively as possible. It is an inherent jurisdiction of the court to make its power effective even

though there is no specific provision in the Code or elsewhere to cover that particular power. It is to cover such cases, I think, Section 151, Civil

P.C. was enacted. I am, therefore, unable to accept the contention of the learned Advocate-General that the court in such cases is helpless and is

not entitled to direct that the plaintiff should be subjected to the examination of an expert whom the court appoints. It is also strenuously urged by

the learned Advocate-General on behalf of the petitioner that even, if such an order is made, it is open to the next friend to nullify the effect of that

order by not obeying it as there is no provision for ennforcing such an order. It is unnecessary for me at this stage to deal with this somewhat

extraordinary contention as I think that when such a situation arises the court would find adequate means of enforcing its order. If the next friend

chooses to disobey the order, it would be open to the court to take such steps as it thinks proper in the circumstances.

The court also held that the right and jurisdiction of the court to enquire into the aspect is, part of the inherent jurisdiction of the court also. The

court also expressed the view that it shall be ensured that minimum inconvenience is caused to the party concerned.

In Polavarapu Venkataswarlu Vs. Polavarapu Subbayya, , a learned single Judge of this Court, in the context of a dispute relating to the

paternity of a child held that where the defendant applies for the direction from the court to the plaintiff a minor child and his mother, his next friend,

to appear in person before the court in order to enable a medical expert to take sample of their blood and the plaintiff and his mother are unwilling

to offer their blood for the test to recognise the paternity of the child there is no procedure either in the CPC or the Evidence Act which empowers

the court to force them to do so.

In Geroge Swarnidoss Joseph v. Miss Sundari Edward (1954) 67 L.W. 676, a learned single Judge of this Court, in the context of a claim for

divorce under Sections 18 and 19 of the Indian Divorce Act, 1869 held that in this Country by necessary implication the court is armed with all the

usual powers which in England are deemed requisite to ascertain the facts of incapacity and without which it would be impossible for any court to

exercise such a jurisdiction in ordering the examination and do so subject to such conditions as will afford protection from injuries to natural

delicacy and sensibilities.

In Bipinchandra Shantilal Bhatt Vs. Madhuriben Bhatt, , a learned single Judge of the Gujarat High Court, in the context of a claim for

dissolution of marriage u/s 13(1) of the Hindu Marriage Act, held that it is for the petitioner to establish his claim of unsoundness of mind on the

part of the respondent-wife and there is no provision in law compelling the respondent to undergo medical examination. The learned Judge has also

observed that of course, adverse inference can be drawn against the respondent for refusing to submit to medical examination.

In Krishnamurthi Aiyar Vs. Govindaswami Pillai and Another, , the learned single Judge of this Court in a case arising under the Panchayats

Act, held that a party could not, against his wish, be compelled to undergo a medical inspection and that it should be left open to the parties to

examine medical witnesses in support of their respective contentions and there should be no compulsory direction for medical examination.

In Revamma y. Shanthappa AIR 1972 Mys. 157 : (1972) 1 Mys. L.J. 136, in a case arising u/s 12 of the Hindu Marriage Act, a learned single

Judge of the Mysore High Court held that a person charged of impotency cannot be compelled to undergo medical examination.

In Smt. Rita Roy Vs. Sitesh Chandra Bhadra Roy, , a Division Bench of the High Court had an occasion to deal with the scope of Section

13(1)(iii)of the Hindu Marriage Act, 1955 in the context of a claim made by the husband against the wife that she became incurably of unsound

mind and that she is also intermittently suffering from mental disorder. It was held that according to the stipulation contained in clause (iii), Sub-

section(1) of Section 13, two elements are necessary to get a decree that the party concerned must be of unsound mind or intermittently suffering

from schizophrenia or mental disorder, and that the said disease also at the same time must be of such a kind and of such an extent that the other

party cannot reasonably be expected to live with her. It was further held therein that only one element of that clause is insufficient to grant a decree.

In Goutam Kundu Vs. State of West Bengal and another, , it was held that Courts in India cannot order blood test as a matter of course and

wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained and that no one

can be compelled to give sample of blood for analysis,

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

decisions refferred 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 a party to subject him or her to medical examination 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. As rightly

contended for the petitioners, the first petitioner who was the first respondent in the court below has appeared In the Box to give evidence and was

subjected to severe cross-examination and that by itself would have been sufficient for the court to form an opinion for the consideration required

u/s 13(1)(iii) of the Hindu Marriage Act. The petitioner could have demonstrated his claim by appropriate means when the wife was in the Box.

The court below, in spite of recording its view that it could be possible also for the court to put questions and ascertain the mental capacity of a

party, in my view, committed a grave error in not endeavouring to do so or recording its views, if any, on the efficiency or otherwise of such a

venture but in mechanically allowing the application by merely assigning certain general and vague reasons on assumption that the party subjected

to such medical examination may not suffer any damage. The very approach of the court below does not appear to fall in line with the prevailing

legal position. That apart, it is not even the view of the court below that the direction has to be issued as a matter of necessity since in spite of

efforts taken the other methods or possibility of deciding the issue objectively was either rendered impossible or that the direction to examine

became absolutely and inevitably essential.

For all the reasons stated above. I am of the view that the exercise of discretion by the court below in the case on hand, at any rate, is wholly

unjustified and consequently, the order of the court below cannot be sustained. The order of the court below is, therefore, set aside and the

revision shall stand allowed. No costs.