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2010 DIGILAW 411 (KER)

Smitha Mathew v. Prasoon Kuruvilla

2010-06-08

M.C.HARI RANI, R.BASANT

body2010
ORDER : R. Basant, J. The wife, who has suffered a decree for divorce on the ground of cruelty and desertion, is the appellant in this Mat. Appeal. This Mat. Appeal has been taken up for consideration along with another Mat. Appeal has been taken up for consideration along with another Mat. Appeal 265 of 2010 which relates to an order regarding custody of the only child-a young boy aged 7 years born in the wedlock. The wife is the appellant in that appeal also. 2. Conscious of the conciliatory role, which this Court is bound to play in a matrimonial proceedings, we had attempted to interact with the parties in the chamber in the presence of counsel and bring them to a harmonious settlement. 3. To put it in a nutshell, the appellant/wife is unwilling for a divorce. She badly wants are-union with the husband. In the interest of her young child also, she prays that the matrimonial tie may not be put an end to and every effort may be made to keep the matrimonial tie alive and active. 4. We had a number of sessions with the parties in the chamber in the presence of their counsel. The wife appears to feel that counselling is necessary to remove the misunderstanding between the parties and persuade them to embark on a harmonious course. The husband is unwilling for this course. According to him, the Rubicon has already been crossed and the wife has no bona fides in her assertion that she wants reconciliation and reunion. 5. The wife particularly informs us that the husband is labouring under some misunderstanding and misappreciation of facts. She has a theory that this is induced because of some post physical ailment complication which he has. If he is properly counselled with psychiatric assistance, those misgiving will give room for a harmonious settlement between the parties. In the course of the discussions with us in the presence of the counsel, the wife even offers that if she is convinced that the husband really wants to separate from her and that decision is not influenced by any illness or complications that have developed consequent to his ailments, she may even be prepared to a course of honourable parting of ways as friends. She insisted that there may be counselling with psychiatric assistance. 6. She insisted that there may be counselling with psychiatric assistance. 6. The husband was not willing to that course in the course of efforts for conciliation and it is, in these circumstances, that the present application has been filed by the wife. The husband did not evidently appreciate the suggestions made in the course of our interactions and we find that the lawyer, who appeared for him earlier, has been changed and anew counsel is appearing for him now. 7. In the petition, there is a prayer that the husband may be subjected to psychiatric test and evaluation. This prayer is countered effectively by Shri.Mathai Manual Paikaday, the learned senior counsel with the argument that no relief whatsoever is claimed in the proceedings for divorce on the basis of the alleged ailment or psychiatric inadequacy of the husband. We agree that we do not find it necessary at all to subject the husband to any psychiatric test in order to give any relief in the proceedings. 8. The learned Counsel for the husband places reliance on the decision of the Supreme Court in Sharda Vs. Dharmpal, and advances the contention strenuously that the court must arrive at a finding that the applicant has established a strong prima facie case before passing an order subjecting a party in a matrimonial litigation to a psychiatric test. We completely agree with the learned Counsel and we have no quarrel with the proposition of law at all. 9. Sri. Chidambaresh, Senor counsel appearing for the wife, places reliance on paragraphs 34 and 36 of the same decision that is Sharda (supra) and contends that "Medical examination by experts in the field may not only help the court to reach the truth, it may also lead to removal of misunderstanding between the parties. It may bring the parties to terms." 10. The learned Counsel further relies on paragraph 36 which reminds the court of its duty. "To play a conciliatory role in matrimonial disputes for which purpose also expert advise may become necessary." 11. We make it clear that we do not intend to state that the husband suffers from any mental or psychiatric disability or inadequacy. But to play a constructive role in a conciliatory process, we are persuaded to agree that parties must be sent for counseling can come from any competent source. The expertise in counseling can come form any competent source. But to play a constructive role in a conciliatory process, we are persuaded to agree that parties must be sent for counseling can come from any competent source. The expertise in counseling can come form any competent source. In the instant case, we feel that counseling with psychiatric assistance will be very useful. This, we feel, is necessary and as claimed by the petitioner in the petition and as observed in paragraph 34 of Sharda(supra), will help to remove misunderstanding between the parties. It may help us to bring the parties to terms. To play the effective role which is expected of courts-the conciliatory role referred to in paragraph 36 of Sharda (Supra), we feel it necessary to direct such counseling with psychiatric/psychological assistance. Both the husband and wife deserve to be counselled with expert psychiatric/psychological assistance. This is not to say that either requires more of such counseling than the other. We are taking pains to convey the purpose for which we intend to refer the parties to counseling with psychiatric assistance lest it be even incorrectly assumed that there is any inadequacy in our perception on the part of the husband who opposes such prayer. 12. We are not persuaded to grant the relief claimed in the petition; but we are satisfied that the relief can be moulded appropriately. 13. This petition is accordingly allowed. In order to remove the misunderstanding between the parties, to bring the parties to terms and to play the legitimate conciliatory role assigned to us in such matrimonial proceedings, we direct that the husband and the wife shall go for counseling with psychiatric and psychological assistance. Both sides are given opportunity to file a panel of two counsellors, two qualified psychiatrists and two psychologists who are willing and who can be assigned this role. 14. Both sides shall file the panel of such experts and we shall pass final directions in the matter on the next date of posting. They shall file such panel within a week that is on or before 15/6/2010 with copy to the other. 15. Call on 17/6/2010 for passing final orders.