Benny v. Riya

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022/ 22ND AGRAHAYANA, 1944 O.P.(FC) NO. 643 OF 2022** **AGAINST THE ORDER DATED 16.09.2022 IN I.A.NO.5 OF 2022 IN O.P.NO.1368 OF 2017 ON THE FILE OF THE FAMILY COURT, THRISSUR** ## **PETITIONER:** **BENNY,** **AGED 54 YEARS, S/O POULOSE, RESIDING AT PULLOCKARAN HOUSE, CHOVVUR VILLAGE, CHOVVUR P.O.,THRISSUR, PIN – 680027.** **BY ADVS. NIHARIKA HEMA RAJ ADITYA DEV** ## **RESPONDENT:** **RIYA** **AGED 46 YEARS, D/O SEBASTIAN, RESIDING AT CHIRAYATH HOUSE, ERAVIMANGALAM P.O., MUKUNDAPURAM, MANNUMPETTA, THRISSUR, PIN – 679340.** **BY ADVS. V.M.SYAM KUMAR V. M. SNEHA RAJIV P.F.ROSY** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 07.12.2022, THE COURT ON 13.12.2022 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.643 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner in O.P.No.1368 of 2017 on the files of the Family Court, Thrissur has filed this Original Petition under Article 227 of the Constitution of India. He challenges the order dated 16.09.2022 by which the Family Court dismissed I.A.No.5 of 2022 in OP No.1368 of 2017. 2. On 21.11.2022, notice on admission was ordered to be served on the respondent. The respondent entered appearance through her learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The petitioner has filed O.P.No.1368 of 2017, a copy of which is Ext.P1, for dissolution of marriage. The marriage of the petitioner and the respondent was solemnised on 24.08.2008. The petitioner seeks to dissolve the marriage under Section 10 of the Indian Divorce Act, 1869. The allegations in Ext.P1 are that the respondent meted out 3 ## O.P.(FC) No.643 of 2022 cruelty incessantly that the petitioner could not tolerate. She had deserted the matrimonial relationship with the petitioner. The respondent filed an objection denying all such allegations. Ext.P2 is a copy of the objection. 5. It is seen that the trial in the case was held by the Family Court and the entire evidence has been recorded. It was at that stage the petitioner filed I.A.No.5 of 2022, a copy of which is Ext.P8, for a direction that the respondent shall be subjected to examination by a Medical Board comprising a physician, Clinical Psychologist, Psychiatrist and a Neurologist. The purpose of examination is stated to be for the character, personality and psychological evaluation of the respondent. 6. The Family Court, after hearing both sides, dismissed I.A.No.5 of 2022 as per Ext.P9 order. The Family Court noticed that filing of such a petition after recording of entire evidence is without any bona fides. It was also observed that in the absence of any pleading requiring such an examination, such an examination of the respondent could not be ordered. 4 O.P.(FC) No.643 of 2022 7. Earlier the petitioner filed a similar application. The Family Court dismissed that application. That order was challenged by the petitioner before this Court by filing O.P. (FC) No.147 of 2021. As per Ext.P6 judgment that O.P. was disposed of observing that,- “5. Having considered the submissions of both counsel, we are of the view that nothing would preclude the Family Court in referring the respondent to a Medical Board, if the Family Court is of the opinion that after the examination of respondent that the respondent has to be referred for a Medical Board for assessment of her mental state. The petitioner also should be given liberty to produce any medical records by summoning hospital authority or doctor. Therefore, dismissal of the present application will not preclude the Family Court in reconsidering the matter afresh in the light of the observations as above. It is made clear that if the Family Court is of the prima facie opinion that after the examination of the respondent as well perusing medical evidence produced, such examination is required, needless to say, the Family Court shall refer the respondent to the Medical Board.” 8. The petitioner claims a relief of divorce under Section 10 of the Divorce Act. It is true that in paragraph 5 ## O.P.(FC) No.643 of 2022 No.19 of Ext.P1, it is averred that the respondent exhibited symptoms of mental illness and she was taken for medical consultation to the Amala Hospital, Thrissur. But the Family Court, holding that the pleadings in Ext.P1 would not reveal that the relief claimed has any proximate nexus with the alleged mental illness of the respondent, dismissed the present application, I.A.No.5 of 2022. 9. Several instances of cruel acts are stated in Ext.P1. Desertion also is alleged. Evidence can be let in only regarding facts in issue and relevant facts. When dissolution of marriage is sought on the grounds of cruelty and desertion, evidence regarding character, personality and psychological status of the respondent does not assume any importance, in order for reaching a logical conclusion in the case. 10. The petitioner has produced Ext.P7, which is a copy of the deposition of PW2 in O.P.No.1368 of 2017. That witness deposed that he had examined the respondent and he was of the opinion that she requires psychological counselling. The witness also stated that she did not require any psychiatric 6 O.P.(FC) No.643 of 2022 treatment. In view of that matter, it may be said that the respondent may have some psychological issues, however, as long as that question is not a relevant consideration in O.P.No. 1368 of 2017, there is absolutely no reason for subjecting the respondent to a medical evaluation as required by the petitioner. 11. The learned counsel appearing for the respondent would submit that the respondent is a bank employee. The original petition was filed in the year 2017. It has so far been defended by the respondent on her own. Never the petitioner has raised a contention that on account of mental illness a guardian has to be appointed for her. In such circumstances, the attempt of the petitioner now by filing Ext.P8 application is nothing, but an attempt to delay disposal of O.P.No.1368 of 2017. 12. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under 7 ## O.P.(FC) No.643 of 2022 Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasijudicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised 8 O.P.(FC) No.643 of 2022 in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 13. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 14. Viewed in the light of the law laid down in the aforesaid decisions and taking into account the facts and circumstances adverted to above, we hold that there is no 9 O.P.(FC) No.643 of 2022 reason to interfere with Ext.P9 order. Hence, this Original Petition is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.643 of 2022 ## **APPENDIX OF OP (FC) 643/2022** **PETITIONER EXHIBITS** - **EXHIBIT P1 A TRUE COPY OF THE O.P. NO. 1368/2017 DATED 09.08.2017 PENDING BEFORE THE FAMILY COURT, THRISSUR** - **EXHIBIT P2 A TRUE COPY OF THE OBJECTION DATED NIL FILED BY THE RESPONDENT IN O.P. NO. 1368/2017 PENDING BEFORE THE FAMILY COURT, THRISSUR** - **EXHIBIT P3 A TRUE COPY OF THE I.A. NO. 01/2020 IN O.P. NO. 1368 OF 2017 PENDING BEFORE THE FAMILY COURT, THRISSUR** - **EXHIBIT P4 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A. NO. 01/2020 IN O.P. NO. 1368/2017 PENDING BEFORE THE FAMILY COURT, THRISSUR DATED 24.02.2020** - **EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 24.03.2020 OF THE FAMILY COURT, THRISSUR IN I.A. NO.1/2020 IN O.P. NO. 1368/2017** - **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 13.07.2021 IN O.P.(FC) NO. 147 OF 2021 OF THIS COURT** - **EXHIBIT P7 A CERTIFIED COPY OF THE EVIDENCE OF PW2 IN O.P. 1368 OF 2017 OF THE FAMILY COURT, THRISSUR** - **EXHIBIT P8 A TRUE COPY OF I.A. NO. 5 OF 2022 IN O.P. NO. 1368 OF 2017 FILED BEFORE THE FAMILY COURT, THRISSUR** - **EXHIBIT P9 A CERTIFIED COPY OF THE ORDER DATED 16.09.2022 OF THE FAMILY COURT, THRISSUR IN I.A. NO. 5/2022 IN O.P. NO. 1368/2017.**