IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06/11/2007
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
C.R.P.(PD) No.2326 of 2007
and
M.P. No.1 of 2007
R.Manjula ..Petitioner
Vs.
A.Ravi Kumar ..Respondent
The civil revision petition is filed against the fair
and decreetal order dated 11.10.2006 passed in H.M.O.P.No.11
of 2006 by the learned Principal Sub Court, Erode.
For Petitioner : Mr.N.Kolandaivelu
For Respondent : Mr.T.Murugamanickam
ORDER
Heard the learned counsel appearing for the petitioner
and the learned counsel appearing for the respondent.
2. The respondent/husband has filed H.M.O.P.No.11 of
2006 on the file of the Principal Sub Court, Erode for
divorce under Section 13(1)(b)(iii) of Hindu Marriage Act,
1955 on the ground that ever since the date of marriage
which took place at Erode and thereafter, when the
petitioner and the respondent went to United States, the
wife has not behaved in normal manner and there was an
abnormal behaviour always suspecting the husband. Therefore,
stating that it is due to the conduct of the wife, the
husband developed panic attack and he had to undergo a
treatment in United States. According to him, the doctors in
the United States after testing the husband/respondent have
come to a conclusion that the revision petitioner/wife was
having “Paranoid Mental disorder” which forms part of mental
disorder and she has physiatrics problems and therefore she
has to be treated by a physiatrist. It is his further case
in his petition that he has taken his wife to Apollo
hospital at Erode and the physiatrist has given his opinion
after testing her and found that the wife/revision
petitioner is suffering from Paranoid Mental disorder.
3.The wife/revision petitioner has filed counter
affidavit in the H.M.O.P. denying the said allegation made
by the husband/respondent against her. She has clearly
stated that it is not correct that the American doctor has
given any medical report advising her to get treatment for
Paranoid Mental disorder.
4. Pending H.M.O.P., the respondent/husband has filed
an application in I.A.No.277 of 2006 under Section 45 of the
Indian Evidence Act with a prayer for a direction against
the petitioner herein to appear before the medical board to
be constituted by the Court and to direct the medical board
to examine the petitioner’s/wife mental and physical
disability and report the same. That application of the
husband/respondent was allowed by the learned Principal
Subordinate Judge, Erode. Against which the wife has filed
the present revision petition.
5.The contention of the learned counsel appearing for
the petitioner is that the order of the Court below in
directing the petitioner to undergo medical test is opposed
to law especially in the circumstances that there was
absolutely no materials produced before the Court to prove
prima facie that the revision petitioner was suffering from
mental disorder. He would also submit relying upon the
judgment of the Honourable Supreme Court reported in 2005 11
SCC 479 (RADHIKA GUPTA vs. DARSHAN GUPTA) that the wife
cannot be compelled to undergo such medical test and it is
the option given to her.
6. On the other hand, the learned counsel appearing for
the respondent would submit that if really the revision
petitioner is not having mental illness, by putting her for
medical test, she is not any way going to be affected and
therefore according to him, the order of the learned
Principal Subordinate Judge, in directing the revision
petitioner/wife to undergo the medical test is not opposed
to law.
7. A reference to the order of the learned Subordinate
Judge shows that the only reason assigned by the Court to
direct the revision petitioner to undergo the test is that
by issuing such direction, the petitioner is not going to be
affected. On the other hand, the learned Judge has not even
taken care to refer to the documents said to have been filed
by the respondent/husband along with the petition which
relates to the medical certificate stated to have been
issued by the American Doctor stating that the wife/revision
petitioner is suffering from mental disorder. This is apart
from the fact that it is not known as to how, when the
husband visited the doctor in the United States, the doctor
after examining the husband, certified that the wife was
suffering from Paranoid mental disorder and that is the
reason for the shock that the husband had. In any event, it
remains a fact that the learned Principal Subordinate Judge
has not applied his mind at all in passing such an order
which has certainly a far reaching effect in the life of a
woman. It is true that the Honourable Supreme Court in 2005
11 SCC 479 (RADHIKA GUPTA vs. DARSHAN GUPTA) has held that
in cases where the wife says herself to be medically tested,
the court has no power to ask her to give evidence before
the medical examination and the option must be given to her.
The Honourable Supreme Court has laid down that aspect of
law in the following manner;
“6. In our opinion, in law the
wife has an option to decide in what
manner she would oppose the ground of
mental illness alleged against her. The
High Court erred in directing that she
would first give evidence on affidavit
as her examination-in-chief and
thereafter appear for cross-
examination. The proper course which
ought to have been adopted by the High
Court was to allow her to undergo
medial examination, if she so desired,
and thereafter give her oral evidence,
if she so liked to do. The rigid
procedure for recording evidence as
directed by the High Court is
unwarranted in law and particularly in
matrimonial proceedings of the nature
where the wife has to face charge of
her mental unfitness.”
The factual assertion in the above said case cannot fit
to the fact of the present case. Nevertheless, it remains
the fact that in such cases of medical test, the option is
given to the wife. The learned counsel appearing for the
petitioner submitted that the learned trial Judge ought to
have appreciate that by directing the wife to undergo such a
medical test on the basis of suspicion that she is having
mental illness which is certainly going to tell upon her
life. In view of the same, I am of the considered view that
the order of the learned Principal Subordinate Judge, to
undergo the medical test, is opposed to law and it is gross
error committed by the learned Principal subordinate Judge.
The order of the learned Principal Subordinate Judge, Erode
made in I.A.No.277 of 2006 in H.M.O.P.No.11 of 2006 is set
aside and the civil revision petition is ordered
accordingly. Further the learned Principal Subordinate
Judge, Erode is directed to take up the said application and
pass appropriate orders after referring the certificate said
to have filed by the respondent/husband and after giving due
opportunities to both parties, within a period of eight
weeks from the date of receipt of a copy of this order No
costs. Consequently, connected miscellaneous petition is
closed.
jikr
