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R.Manjula vs A.Ravi Kumar on 6 November, 2007

Madras High Court
R.Manjula vs A.Ravi Kumar on 6 November, 2007
       

  

  

 
 
           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

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