Bivin John v. Minnu Joseph

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942** **OP (FC).No.42 OF 2021** **AGAINST THE ORDER IN I.A. 2/2020 IN OP 1022/2018 OF FAMILY COURT, KOTTAYAM** ## **PETITIONER/PETITIONER IN O.P:** **BIVIN JOHN AGED 38 YEARS S/O SURESH JOHN, PULIKKAPPARAMBIL HOUSE, CHENGALAM P.O.THIRUVARPPU VILLAGE, KOTTAYAM** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENT/RESPONDENT IN TRIAL:** **MINNU JOSEPH, D/O JOSEPH ALEXANDER, MAPPILLASSERIL HOUSE, KALASANADU, UDUMBANCHOLA TALUK, IDUKKI DISTRICT-685 554.** **R1 BY ADV. SRI.T.P.PRADEEP R1 BY ADV. SRI.P.K.SATHEES KUMAR R1 BY ADV. SMT.MINIKUMARY M.V. R1 BY ADV. SHRI.AJAI JOHN** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.42 OF 2021** **2** ## **JUDGMENT** ## **Dated this the 10th day of February 2021** C.S.Dias,J. The original petition is filed, under Article 227 of the Constitution of India, to set aside the common order in I.A Nos.2&3/2020(Ext.P6) in O.P. No.1022/2018 of the Family Court, Kottayam. 2. The petitioner has filed O.P. No.1022/2018 seeking a decree to declare his marriage with the respondent null and void, inter alia, on the ground of fraud. The petitioner filed I.A No.2/2020 to subject the respondent – his wife to medical examination for the reasons that she is infertile; that she had suffered a stroke; that she incapable of having physical relationship; that she has a disability and that she had undergone a surgery, which facts were suppressed from the petitioner at the time of giving his consent for the marriage. **OP (FC).No.42 OF 2021** **3** 3. The respondent filed a written objection to I.ANo.2/2020, refuting the allegations in the application. Nevertheless, she filed I.A 3/2020 to subject the petitioner to medical examination by a Medical Board, for the reasons that the petitioner is suffering from erectile dysfunction; that he has low sperm count; that he has psychological problems and that he is incapable of having sexual relationship. The said application was opposed by the petitioner. 4. The applications were jointly heard and considered. 5. The Family Court by the impugned order dismissed the applications on the grounds that the applications were pre-mature and it could be considered at a later stage, if felt necessary. 6. Heard Sri.C.S.Manilal, the learned counsel appearing for the petitioner and Sri.T.P.Pradeep Kumar, the learned counsel appearing for the **OP (FC).No.42 OF 2021** **4** respondent. 7. The learned counsel for the petitioner argued that Ext.P6 impugned order passed by the Family Court is erroneous because the petitioner had filed I.A No.2/2020 to substantiate his case that the respondent was suffering from various mental and physical ailments, which were deliberately suppressed by the respondent, which tantamounts to fraud and mis-representation, entitling the petitioner to a decree of nullity. He submitted that the reasoning of the Family Court that the applications were pre-mature is wrong because it is the mandate under the Code of Civil Procedure that the materials be placed on record before the commencement of trial. 8. The learned counsel appearing for the respondent argued that the attempt of the petitioner is only to circumvent the judgment dated 24.7.2020 passed by this Court in O.P (FC)245/2020, whereby **OP (FC).No.42 OF 2021** **5** this Court directed O.P.1022/2018 to be disposed of within eight months from the date of judgment. The petitioner knowing fully well the time frame fixed by this Court, is trying to protract the proceeding. However, the learned counsel admitted the fact that the respondent has also filed an application to subject the petitioner for medical examination. He finally contended that even if this Court set asides Ext.P6 order, both the petitioner and the respondent be directed to appear before a competent Medical Board and be subjected to medical examination, so that the controversy regarding the physical and mental health of the parties could be ascertained, which would help the court in determining the truth and deciding the 'lis'. He, however, prayed that the time period fixed by this Court may be directed to be adhered to by the Family Court, while disposing of the cases between the parties. **OP (FC).No.42 OF 2021** **6** 9. A Constitutional Bench of the Hon'ble Supreme Court in **Sharda v.Dharmpal** [2003 (2) KLT 243 (SC)] has held that the Court has the power to order a person to undergo a medical test in a matrimonial dispute and that there is no violation of right to personal liberty as enshrined under Article 21 of the Constitution of India. The said legal position has been reiterated by a Division Bench of this Court **Dr.Smitha Mathew v. Dr.Prasoon Kuruvila** [2010(3) KLT SN 7]. 10. Both the petitioner and the respondent have raised allegations and counter allegations as against each other regarding their physical and mental health. Both parties want the other to be subjected to medical examination. Even though both parties claim to be in possession of the medical records of the other party, both have felt that the allegations regarding each others mental and physical health **OP (FC).No.42 OF 2021** **7** could be assessed and evaluated by a competent Medical Board. 11. In light of the categoric declaration of law in **Sharda v. Dharmpal and Dr.Smitha v. Prasoon Kuruvila** (supra), there is no doubt that the Court has the power to order a person to undergo a medical test in order to determine a matrimonial dispute. 12. In the above factual and legal background, we are of the definite opinion that no prejudice would be caused to either the petitioner or the respondent, if both of them are subjected to a medical test by a competent Medical Board, in view of the allegations and counter allegations levelled against each other in their respective applications, to assess and evaluate their mental and physical health/ailments. 13. The findings of the Family Court that the applications are pre-mature and can be decided at a **OP (FC).No.42 OF 2021** **8** later stage are erroneous because it would always be adviceable that necessary steps to be taken to substantiate one's pleadings before the commencement of trial so that both parties would know the opposite sides defence. 14. In the result, in exercise of the supervisory power of this Court, we allow the original petition as follows: (i) The impugned Ext.P6 common order is set aside. (ii) I.A Nos.2 & 3/2020 filed by the petitioner and the respondent are allowed by directing the Superintendent of the Medical College Hospital, Kottayam to constitute a competent Medical Board, at the earliest and the medical test of both the petitioner as well as the respondent be conducted at the expense of both parties, in order to ascertain the alleged mental and physical health/ailments of both parties. (iii) The parties are directed to appear before the Superintendent, Medical College Hospital, Kottayam on **OP (FC).No.42 OF 2021** **9** 1.3.2021 along with copy of the judgment and the medical records in their possession, which may be handed over to the Superintendent. (iv) The Superintendent of the Medical College Hospital, Kottayam shall after the examination is over, as expeditiously as possible, forward the medical report to the Family Court, Kottayam at Ettumanoor. (v) On receipt of the medical report by the Family Court, every endeavour shall be made to dispose of O.P. Nos.1022/2018, 1474/2018, 44/2019 and M.C 219/2018, in accordance with law, as expeditiously as possible, at any rate within a period of six months from the date of receipt of the report of the Medical Board. ## **Sd/-** ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- ## **C.S.DIAS** **JUDGE** ma/11/2/2021 /True copy/ **OP (FC).No.42 OF 2021** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PETITION OP(DIV0 NO 1022/2018 DATED 10.8.2018 FILED BEFORE THE FAMILY COURT, KOTTAYAM** **EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 30.6.2019 IN OP(DIV) NO 1022/2018** **EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IA NO 2/2020 IN OP(DIV) 1022/2018 DATED 22.9.2020** **EXHIBIT P4 TRUE COPY OF THE OBJECTION IN OP 1022/2018 DATED 12.10.2020** **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND PETITION IN OP 1022/2019 IN OP 1417/2018, OP 44/2019 MC NO 219/2018** **EXHIBIT P6 TRUE COPY OF THE COMMON ORDER IN IA 2/2020 & IA 3/2020 IN OP 1022/2019 OP 1474/2018, OP 44/2019 M.C.NO 2019/2018 PASSED BY THE FAMILY COURT, KOTTAYAM**