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2008 DIGILAW 737 (KAR)

N. Rukmini v. P. Puttaswami

2008-11-27

N.K.PATIL

body2008
Judgment :- Patil, J. .1. Petitioner in this petition has sought for quashing/setting-aside the order dated 20th September 2008 passed by the Additional Civil Judge (Sr.Dn) Hassan vide Annexure - D on the I.A. filed by the petitioner under order 26 Rule 10-A read with Section 151 of the Code of Civil Procedure in .M.C.No.22/2004 and allow the said application. 2. The petitioner and respondent are husband and wife, whose marriage was solemnized on 20 May 1994 as per the Hindu rites at Shimoga and out of the said wedlock, petitioner and respondent have two children by name Master Bharath and Kumari-Shreyu, who are now aged about 13 and 10 years respectively. The case of petitioner is that, she is working as a `woman constable at Hassan and respondent is working as an `Announcer at AIR atAkashavani, Hassan and both of them are residing presently together at Akashavani quarters, Hassan and their relationship has so far been harmonious and that, petitioner is a dutiful and faithful wife and mother and taking good care of the respondent and their children. There has been no grievance or complaint against the petitioner by the respondent, but unfortunately, beyond their capacity, it is alleged by the respondent — husband that, petitioner-wife , is suffering from `Paranoid Schizophrenia and therefore, filed the Divorce petition under Section 13 of the Hindu Marriage Act, 1955 in M.C.No.22/2004 on the file of the Learned Civil Judge (Senior Division), Hassan. Petitioner being a courageous and respectable woman, working in the police force as constable, taking as a challenge, is seriously contesting the petition filed by respondent. Therefore, in order to find out the truth and reality of the allegations made against the petitioner, she was constrained to file the application under Order 26 Rule 10-A read with Section 151 of Civil Procedure Code in M.C.No.22/2004 seeking experts second opinion regarding the alleged disease as to whether she is suffering from `Paranoid Schizophrenia or not. The application filed by petitioner had come up for consideration before the learned Civil Judge (Senior Division), Hassan on 20th September 2008 and the Trial Court rejected the application filed by petitioner on the round that, it is not necessary and there is no need to take second opinion from another Psychiatrist on the ground that, PW3 — Dr. The application filed by petitioner had come up for consideration before the learned Civil Judge (Senior Division), Hassan on 20th September 2008 and the Trial Court rejected the application filed by petitioner on the round that, it is not necessary and there is no need to take second opinion from another Psychiatrist on the ground that, PW3 — Dr. Arunachalaaih, has been working as a Psychiatrist since 25 years in various places and was then working in S.C. Hospital, Hassan and that, there are no personal allegations as such made against the said PW3 by respondent (petitioner herein). Petitioner being seriously aggrieved by the impugned order on I.A. rejecting the request of petitioner to get the second opinion from an expert at NIMHANS Hospital, Bangalore, is constrained to redress her grievance by presenting the instant writ petition, seeking appropriate reliefs, as stated supra. 3. I have heard learned counsel appearing for petitioner and learned counsel appearing for respondent. .4. After careful perusal of the order impugned, it is manifest on the face of the order that, the learned Civil Judge (Senior Division), Hassan has seriously erred in rejecting the application filed by petitioner seeking permission to take expert opinion/second opinion from an expert at NIMHANS regarding the suffering of the alleged disease. It is pertinent to note that, the divorce petition is filed only on the basis that, the wife is suffering from `Paranoid Schizophrenia and there are no other allegations whatsoever against the petitioner. One of the experience Doctor at Hassan has given his .opinion that, petitioner is in fact suffering from the said disease. Petitioner has nothing against the Doctor and has not made any personal allegations against him and she has only sought permission of the Court to obtain second opinion from any expert at NIMHANS, Bangalore. When the issue is of serious nature and entirely has the bearing on the divorce petition filed by respondent, it was definitely required of the Trial Court to grant permission to petitioner to get a second opinion from any other expert. When the issue is of serious nature and entirely has the bearing on the divorce petition filed by respondent, it was definitely required of the Trial Court to grant permission to petitioner to get a second opinion from any other expert. This aspect of the matter has not been properly looked into nor considered by the Trial Court and it has straightway proceeded to reject the application in a casual manner stating that PW3 — Psychiatrist working since 25 years has given his opinion that, she is suffering from the said disease and she has neither disputed the qualification and the expertise of the Doctor nor has she made any personal allegations against him. Petitioner is intending to take a second opinion in order to find out the genuineness of the disease alleged to have been suffering by the petitioner, which entirely depends on the case made out by respondent before the Trial Court for divorce. When such being the case, the Court below, in a just, fair and reasonable manner, ought to have taken into consideration the fact that, the rejection of request of the petitioner to obtain second opinion from an expert is likely to unsettle the survival and career of a person in particular, family in general and Society as a whole. The Trial Court also ought to have looked into the fact that, the petitioner is a mother of two, pursuing her career in police force and if the said alleged disease is known to her children and public, the welfare of the children and the future of petitioner would be jeopardized. In these sensitive and delicate matters which may result in serious repercussion on the life of a person, the court below could not have lightly jumped to conclusion in rejecting the application for taking second opinion from any expert Doctor from NIMHANS, Bangalore. 5. Further, it is crystal from the relevant provisions of the Act that, `Paranoid Schizophrenia is one of the grounds but not the only ground for divorce. The said disease should be exhaustively examined, proved and certified by expert Doctors in the filed of Psychiatry. 5. Further, it is crystal from the relevant provisions of the Act that, `Paranoid Schizophrenia is one of the grounds but not the only ground for divorce. The said disease should be exhaustively examined, proved and certified by expert Doctors in the filed of Psychiatry. Therefore, taking into account the paramount consideration and welfare of the children and also the seriousness of the alleged disease, alleged to have been suffered by petitioner, I am of the considered view that, this matter requires reconsideration and is aptly required to be referred to the expert opinion at NIMHANS Hospital, Bangalore to have a second opinion. Once that is done, the litigants would know their fate, where they stand and that would enable them to take right and conscious decision and get ready to face the consequences. 6. Therefore, keeping in view all these factors, the writ petition filed by petitioner is disposed of as follows: I) The Writ Petition filed by petitioner is allowed; II) The Impugned order passed by learned Civil Judge (Senior Division), Hassan on the application filed by petitioner under Order 26 Rule 10-A read with Section 151 of Civil Procedure Code in M.C.No.22/2004 is hereby set aside; III) In view of setting aside of the order made on I.A. and in the light of the facts and circumstances of the case, as stated supra, the I.A. filed by petitioner under Order 24 Rule 10-A read with Section 151 of Civil Procedure Code in M.C.No.22/2004 is hereby allowed; IV) Petitioner herein is permitted to get herself examined and take the second opinion from the expert Doctors at NIMHANS, Bangalore regarding the alleged disease, stated to have been suffered by her and after obtaining the report, she is permitted to place the same before the learned Civil Judge (Senior Division) Hassan in M.C.No.22/2004, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a copy of this order. If the report of the expert Doctor from NIMHANS is submitted by the petitioner learned Civil Judge (Senior Division) is directed to receive the same and pass appropriate order in accordance with law, after affording opportunity to petitioner and respondent and dispose of the same, as expeditiously as possible, on merits.