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2021 DIGILAW 985 (KAR)

Gayatri @ Gadigevva W/o. Vijay Hadimani v. Vijay S/o. Siddappa Hadimani

2021-12-03

N.S.SANJAY GOWDA

body2021
ORDER : 1. The petitioner is the wife who has presented this petition assailing the order passed by the Family Court, Dharwad (for short, ‘the Family Court), by which, her husband’s request to summon the Doctor to produce documents relating to her alleged abortion has been granted. 2. A proceeding for dissolving the marriage on the ground that the wife had treated the husband with cruelty and that she had deserted him for a continuous period of two years was initiated by the husband. In this petition, an allegation was indeed made about the adulterous life that his wife was leading, though divorce on the ground that the wife had a voluntary sexual intercourse with another person was not raised. 3. In addition to the divorce proceedings, a proceeding for maintenance under Section 125 of the Criminal Procedure Code, 1973 had also been initiated by the wife. 4. In the proceedings for divorce, an application was filed to issue a direction to one Dr.Smita of Dr.Ramanagouda Hospital, Malapur Cross, Dharwad to produce the entire case details (Including declaration letter, undertaking letter, daily summary report sheet, doctor report, scan copy and other all relating copies) and also to give evidence on the said documents in respect of wife who was stated to have been treated under Patient I.D.No.30386. 5. In the affidavit in support of the said application, it was stated that in the maintenance proceedings, an application had been filed and the same was allowed and a direction had been issued to the Dr.Ramangouda Hospital Authority to submit the medical records and to give evidence. It was stated that since the present proceeding was filed seeking for dissolution of marriage by a decree of divorce and that was the main case, the said records needed to be summoned. 6. It was stated that since the husband had taken the specific contention that the wife was having an illicit relationship and there was clear evidence that she became pregnant, the said documents were necessary to establish the contention. 7. It was stated that the wife had infact undergone an abortion on 21.11.2020 under Patient I.D.No.30386 and the same had been suppressed. 7. It was stated that the wife had infact undergone an abortion on 21.11.2020 under Patient I.D.No.30386 and the same had been suppressed. It was stated that though the doctor had been summoned in the maintenance proceedings, only some of the documents were produced and not all of them were produced and since the petition for dissolution of marriage was the main case, these documents needed to be produced in these proceedings. 8. This application was stoutly opposed by the wife. She stated that if the records were summoned, the confidentiality that was required to be maintained by the hospital would be violated. It was also stated that the documents sought to be produced, even if true, would not establish or prove the adulterous life being led by her. 9. The Trial Court, after hearing, has proceeded to allow the application mainly on the ground that the documents maintained by the Doctor of a Private Hospital were private documents. The Court reasoned that the said private documents were related to one of the parties and since the husband, by virtue of his legal relationship with his wife, was entitled to obtain the records concerning his wife. The Family Court took the view that there was no question of Hospital Authorities maintaining secrecy in respect of medical records of the wife vis-à-vis the husband. The Family Court also observed that the proposed documents were very much necessary since it related to the wife and it, therefore, allowed the said application. 10. It is this order of summoning the medical records which is the subject matter of this writ petition. 11. The learned counsel for the petitioner-wife contended that the medical records of a person are absolutely private to the person concerned and the same cannot be summoned by any person including the husband. He submitted that the husband by virtue of a legal relationship with his wife does not possess a right, either in law or in equity, to know or procure the medical records of his wife. 12. He also submitted that in proceedings for divorce, if a husband is permitted to call for medical records of his wife and seek to publish her private details, the same would be a gross violation of the “Right to privacy” guaranteed under Article 21 of the Constitution of India. 13. 12. He also submitted that in proceedings for divorce, if a husband is permitted to call for medical records of his wife and seek to publish her private details, the same would be a gross violation of the “Right to privacy” guaranteed under Article 21 of the Constitution of India. 13. Learned counsel also contended that the Family Court by summoning the medical records pertaining to the wife was essentially transgressing the confidentiality that was required to be maintained between a Doctor and his patient. He submitted that the confidentiality that is required to be maintained between the doctor and his patient cannot be broken even at the instance of one of the spouses. He submitted that by summoning the medical records from the Doctor and asking her to adduce evidence, the Court was essentially forcing the Doctor to act unethically and violate her oath of secrecy to her patient. 14. Learned counsel for respondent Smt Sumangala A.Chakalabbi, on the other hand, contended that the documents mentioned would establish the adulterous life that the wife was leading and her medical documents relating to the abortion would be the clinching piece of evidence that would establish the allegations of her adulterous life without a shadow doubt. 15. She submitted that since the Doctor had already been summoned in the maintenance proceedings and had adduced evidence, there was no impediment for the Family Court to once again summon the Doctor. She also highlighted the fact that the order passed in the maintenance proceedings were accepted by the wife and therefore in the divorce proceedings she could not be permitted to raise any objections. 16. Learned counsel for the respondent further submitted that it was settled law that the Courts could issue an appropriate direction to a party to be subjected toa medical examination as it would be difficult for the Court to arrive at a conclusion as to whether the allegations made by the spouse against the other spouse was correct or not. She submitted that since the records would establish the veracity of allegations made by the husband there was no infirmity or illegality in the order. 17. She submitted that summoning of the records of the wife would not amount to an invasion of the right of privacy. She submitted that since the records would establish the veracity of allegations made by the husband there was no infirmity or illegality in the order. 17. She submitted that summoning of the records of the wife would not amount to an invasion of the right of privacy. She sought to lay emphasis on the fact that the personal liberty guaranteed under Article 21 of the Constitution of India cannot be treated as an absolute right and this right to privacy cannot apply to a case where a spouse was seeking for divorce, even assuming that the wife did possess this right. 18. She relied upon the judgments rendered by the Hon’ble Supreme Court in the case of Sharda v. Dharmpal, reported in AIR 2003 SC 3450 and in the case of MR.’X’ v. Hospital ‘Z’, reported in (1998) 8 SCC 296 and an article regarding Medical privileges published in the Canadian Bar Review. 19. Learned counsel Smt. Sumangala A. Chakallabbi also sought to place reliance on Regulation 7.14 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (for short, ‘the Regulation, 2002’) to contend that it was legally permissible for a registered medical practitioner to disclose the secret of the patient that had come to his knowledge or which was confided to him by the patient during the discharge of their profession. She stated that when a Court of law passes an order directing the medical practitioner to divulge the information relating to the patient, the medical practitioner was bound to disclose the same. She submits that since it was permissible for the courts to order the medical practitioner to disclose the secret of a patient, the application filed was legally tenable and did not amount to any infringement of the Doctor-patient confidentiality. 20. Having heard the learned counsel for the parties, the following issue arises for consideration in this writ petition. “Whether, it is permissible for a Family Court to summon the medical records of a spouse on the request of the other spouse, especially when it pertained to records relating to any procedures relating to the reproductive choices of the spouse?” 21. The Regulations framed for the professional conduct of the medical practitioners require the medical practitioner to give a declaration at the time of registration. The Regulations framed for the professional conduct of the medical practitioners require the medical practitioner to give a declaration at the time of registration. One of the declarations given by the medical practitioner is “I will respect these crest which are confided in me”. Thus, the medical practitioner is statutorily bound to maintain secrecy in respect of the things which are confined to the medical practitioner by the patient. This declaration, fundamentally, establishes that the Doctor-Patient relationship is one of absolute trust and should not be broken. 22. Regulation 7.14 of the Regulation, 2002, upon which, reliance was placed is a reflection of this declaration. The said regulation reads as follows : “7.14. The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his/her profession except – i) in a court of law under orders of the Presiding Judge; ii) in circumstances where there is a serious and identified risk to a specific person and / or community ; and iii) notifiable diseases.” In case of communicable/notifiable diseases, concerned public health authorities should be informed immediately.” 23. As could be seen in Regulation 7.14 of the Regulations, 2002, there is an absolute embargo on the medical practitioner from disclosing the secrets of a patient that comes within the knowledge of the medical practitioner during the discharge of his professional duties. 24. To this embargo, however, there are three exceptions. The first exception, with which we are concerned, is when a presiding Judge passes an order calling upon the medical practitioner to divulge a secret that he is aware of regarding his patient. Thus, unless there is a specific order of a Judge presiding over a Court of law, no medical practitioner can disclose the secrets that he has become privy to during the discharge of his professional duties. 25. Merely because a Court of law possesses that power to direct the medical practitioner to divulge a secret confided with a medical practitioner, that power would not and should not be exercised merely for the asking or routinely. The power to direct a medical practitioner to act in violation of his declaration should be exercised only for strong and compelling reasons and would be more or less be exercised only when an element of public interest was involved. 26. The power to direct a medical practitioner to act in violation of his declaration should be exercised only for strong and compelling reasons and would be more or less be exercised only when an element of public interest was involved. 26. The Courts, therefore, cannot direct medical practitioners to disclose the secrets that they are privy to Divorce proceeding, by their very nature, is adversarial and more often than not a bitter and acrimonious battle, at times initiated to tarnish the reputation of the warring spouse. Thus, the power of the Court to direct the medical practitioners to divulge secrets that are confided to them should be exercised very sparingly and only for exceptional reasons. 27. In order to get over the bar imposed on the medical practitioners to disclose the secrets of the patients to which they are privy, the Courts should not be asked to exercise their power to secure medical records. If this is permitted, it would mean the Medical practitioner is required to divulge the secrets that the patient has disclosed to him contrary to his professional ethics only because an adversary in litigation wishes to use it to non-suit the other. 28. It is to be kept in mind that the medical records of an individual are very private and are not for public consumption. If the medical record of a person is private to him, a direction to his medical practitioner to produce the medical records or divulge any secret that he is privy to it would essentially amount to infringing the fundamental right of privacy guaranteed to an individual, which emanates from the “Right to Life” granted under Article 21 of Constitution of India. 29. In fact, in the case of K.S.Puttaswamy and another v. Union of India and others, a bench presided over by 9 judges, the Hon’ble Apex Court has observed as follows: 248. Privacy has distinct connotations including (i) spatial control ; (ii) decisional autonomy ; and (iii) informational control. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person. With regard to informational privacy, it has been stated that : “…. Perhaps the most convincing conception is proposed by Helen Nissenbaum who argues that privacy is the expectation that information about a person will be treated appropriately. This theory of “contextual integrity” believes people do not want to control their information or become inaccessible as much as they want their information to be treated in accordance with their expectation (Nissenbaum 2004, 2010, 2011)”. “323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of out culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.” 30. Thus, things that are private to an individual would have to be respected by one and all and every endeavour should be made to ensure that the privacy of the individual is not violated. 31. The matter would also have to be looked at from a different point of view. S. 126 of the Evidence Act, which deals with professional communications, grants immunity to the professional named therein, i.e., a Vakil, barrister, or pleader from divulging the communication made to him by his client. S. 151 and S. 152 of the Indian Evidence Act prohibits indecent or scandalous questions and also question which are intended to insult or annoy the witnesses from being asked. S. 151 and S. 152 of the Indian Evidence Act prohibits indecent or scandalous questions and also question which are intended to insult or annoy the witnesses from being asked. A conjoint reading of S. 126, S. 151 and 152 along with the Regulations would lead to the inference that a Doctor would also be entitled to the same privilege that the Advocate enjoys in the matter of his professional communication with his client. 32. It is therefore clear that Courts cannot as a matter of course summon medical records or direct the Doctors to give evidence about the medical condition of a litigant. 33. Though S. 14 of the Family Courts permits the Family Court to receive evidence, which is otherwise inadmissible under the Evidence Act, in order to assist it in dealing effectually with a dispute, that power cannot be extended to commit a breach of the sacred obligation cast on a medical practitioner to maintain the Doctor-patient confidentiality or to intrude on the fundamental right of privacy guaranteed to a citizen. 34. The only exceptions to this bar could be when one of the parties to the lisis under a legal disability which is probably handicapping him in some way and in order to safeguard his legal rights, an evaluation of his physical or mental health would be necessary. In other words, when a party is under a disability, in order to ascertain the disability, the Courts can in appropriate cases direct the parties to subject themselves to a medical examination. The exercise of this right is to obviously protect the litigant and not to extract some private information from the litigant which may aid the opposing litigant. 35. It is in this context that the Hon’ble Apex Court has stated in the case of Sharda v. Dharmpal, reported in AIR 2003 SC 3450 stated that in any appropriate case the Courts are empowered to subject a party to subject himself to a medical examination. Therefore, this judgment, on which strong reliance was placed by Smt. Chakalabbi, cannot be used to as support the request of the husband in the instant case. 36. The other judgment relied upon by the learned counsel which has been reported in (1998) 8 SCC 296 can also be of no avail to the husband. Therefore, this judgment, on which strong reliance was placed by Smt. Chakalabbi, cannot be used to as support the request of the husband in the instant case. 36. The other judgment relied upon by the learned counsel which has been reported in (1998) 8 SCC 296 can also be of no avail to the husband. In the said judgment the Hon’ble Apex Court has clearly held that only if a circumstance exists in which public interest of even true private facts are essential, then it would not amount to invasion of the right of privacy. In fact, the Hon’ble Supreme Court has stated that a Doctor and patient relationship is essentially a matter of trust and confidence between the two and the Doctors are morally and ethically bound to maintain secrecy. 37. The Hon’ble Supreme Court has merely clarified that this privilege of the Doctor is not absolute and can be lawfully excluded for the prevention of crime, public disorder, protection of health, or morals or protection of life or freedom of others. This indicates that disclosure of private facts can be ordered only if it is in the public interest. 38. Now coming to the facts of this case, it would be significant to notice that the proceedings initiated for a divorce by the husband is not on the ground that the wife had, after solemnization of the marriage, voluntary sexual intercourse with any person other than his/her spouse (i.e., under 13(1) (i) of the Hindu Marriage Act, 1955). 39. The grounds under which the divorce is sought for by the husband is that the wife had treated him with cruelty and she had deserted him for a continuous period of not less than two years (i.e., under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955). If it is the case of the husband that his wife, by leading an adulterous life, had inflicted cruelty on him this allegation will have to be proved with cogent evidence in a manner known to law. This allegation cannot be proved by summoning the private medical records of the wife. 40. The Doctor, even if summoned, cannot by the production of medical records, assist the Court in concluding as to whether the wife had voluntary sexual intercourse with a person other than the husband. This allegation cannot be proved by summoning the private medical records of the wife. 40. The Doctor, even if summoned, cannot by the production of medical records, assist the Court in concluding as to whether the wife had voluntary sexual intercourse with a person other than the husband. If the husband can prove that he had no access to his and if he can establish that his wife had or was having any illicit sexual relationship with another person, the same will have to be established by appropriate evidence as provided under the Evidence Act. 41. In any event, the illicit relationship of a spouse cannot be proved by securing his or her private medical records. In fact, if this approach is to be accepted, it would amount to the destruction of the entire concept of Doctor and patient confidentiality and also drag the Doctor into a marital dispute. 42. I am therefore of the view that the impugned order cannot be sustained and the same is hereby set aside. Consequently, I.A. No. IX shall stand rejected and the Writ Petition is allowed.