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2007 DIGILAW 3506 (MAD)

R. Manjula v. A. Ravi Kumar

2007-11-06

P.JYOTHIMANI

body2007
Judgment :- 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 petitioners/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. 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. 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. 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.