C.R. No. 856 of 2009 #1#
IN THE HIGH COURT FOT THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R. No. 856 of 2009
Date of order:3.9.2009
Gobind Goel ....Petitioner
Versus
Smt Sudha Rani ....Respondent.
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. Ashok Singla, Advocate for the petitioner.
Mr. Hari Om Sharma, Advocate for the respondent.
JASWANT SINGH,J.
Instant revision petition under Article 227 of the Constitution
of India is directed against the order dated 15.1.2009 passed by learned
Civil Judge (Sr. Division), Faridkot whereby two applications filed by the
petitioner-husband for constitution of a medical board for conducting
medical check up of the respondent wife and for directing respondent-wife
to undertake the medical examination for determining her mental condition
in the pending petition for judicial separation have been dismissed.
The brief facts may be noticed as under :
Marriage between the petitioner-husband and respondent-wife
was solemnised on 31.10.1998 as per Hindu rites. Out of their wedlock, a
female child namely Vanusha Goel was born in the year 1999. Petitioner-
husband on 26.4.2007 filed a petition under Section 10 of the Hindu
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Marriage Act, 1955 (for brevity “the Act”) praying for a decree of judicial
separation as it is claimed that respondent-wife is suffering from mental
dis-order even prior to their marriage and the petitioner along with his
minor daughter and 80 years old mother are unable to safely reside with her
due to her incurable, erratic and violent behaviour. Respondent-wife, in her
written reply filed on 15.2.2008 denied the allegations. The issues were
framed on 19.3.2008. It appears that no evidence was led by the petitioner
on two dates i.e 1.8.2008 and 24.9.2008 despite the condition that the entire
evidence at his own responsibility shall be led on 24.9.2008. Thereafter, the
case was adjourned to 26.11.2008 for entire evidence of the petitioner-
husband at his own responsibility. However, the petitioner-husband on
3.10.2008 moved two applications before the learned trial Court. In the first
application, a prayer was made for directing the Principal of G.S.S Medical
College and Hospital, Faridkot to constitute a medical board of at least three
specialist Doctors for medical check up of the respondent-wife and to
submit a report regarding her mental condition. The second application was
for issuance of direction to the respondent-wife to appear before the medical
board for her medical check up. Both the applications were contested by the
respondent-wife. Learned trial Court, however, dismissed both the
applications vide order dated 15.1.2009 on the premise that the petitioner-
husband had failed to bring any material before the Court to make out a
prima facie case for such direction and that the applications were only
aimed at delaying the adjudication. Hence, the present revision petition has
been filed.
This court while issuing notice of motion had directed the
payment of Rs.10,000/- as litigation expenses to the respondent-wife and
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further directed the parties to be present along with their daughter namely
Vanusha Goel.
I have heard learned counsel for the parties and perused the
pleadings with their able assistance.
It was contended by learned counsel for the petitioner that in
the facts of the present case, for the Court to arrive at just and effective
decision, the determination of the mental condition of the respondent-wife
by panel of expert doctors is absolutely necessary. It was further urged that
the petitioner was willing to bear all expenses for such medical check-up.
In support of his contention, learned counsel cites a judgement of Rajasthan
High Court reported in Smt Renuka v. Rajendra Hada, 2007 (3) RCR
(Civil) 449 and a judgement of Hon’ble Supreme Court reported in Sharda
v. Dharampal 2004(1) L.J.R 540.
Learned counsel for the respondent-wife submitted that no
evidence whatsoever has been led by the petitioner despite sufficient
opportunities to even make out a prima facie case for issuance of direction
for the aforesaid medical check up and, therefore, the applications have
been rightly dismissed. In support, learned counsel relied on a judgement of
Hon’ble Supreme Court reported in Gautam Kundu v. State of West
Bengal and another, 1993 Crl.L.J 3233.
Efforts to bring about a reconciliation failed.
After giving thoughtful considerations to the rival submissions
and my inter-action with the parties, I am of the opinion that the claim of the
petitioner is meritorious and deserves to be accepted. It is not disputed that
the main plank/ground upon which the petition under Section 10 of the Act
for judicial separation has been filed by the petitioner-husband is that the
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respondent wife is suffering from incurrable mental disorder. It is also not
in dispute that the case is at the stage of petitioner’s evidence. It also cannot
be disputed that the parties should be of sound mind for leading a
meaningful and happy married life. It is also true that the primary duty of
the Court is to ensure that the truth is always arrived at. Hon’ble the
Supreme Court in Sharda v. Dharmpal, 2003(2) RCR (Civil) 795, where
a decree of divorce was sought on the ground of unsoundness of mind, after
examining the entire case law including the one cited by learned counsel
for the respondent i.e Gautam Kundu case (supra) on the subject, held that
the direction for undertaking medical tests to determine the mental state was
necessary for effectively deciding the issue between the parties.
Keeping in view that (i) the case is at the initial stage of
petitioner’s evidence; (ii) he would not gain anything by delaying the case,
(iii) there could be no better evidence than reports based on medical
examination of the respondent wife; and the settled legal principles, I am of
the opinion that it would be just and appropriate to have a medical test
regarding the mental state of the respondent-wife in order to assist the Court
in effectively deciding the dispute between the parties.
Accordingly, petition stands allowed. Order dated 15.1.2009
passed by the learned Civil Judge (Sr.Division), Faridkot is set aside.
Learned trial Court is directed to take further action on the aforesaid two
applications. It is clarified that the petitioner-husband shall bear all the
expenses of the medical examination.
3.9 .2009 ( JASWANT SINGH ) manoj/joshi. JUDGE