Rajmohan L v. Sindhu P.B.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942 OP (FC).No.239 OF 2020** **AGAINST OP 346/2019 OF FAMILY COURT, MUVATTUPUZHA** ## **PETITIONER:** **RAJMOHAN L AGED 48 YEARS, S/O.K.LILADHARAN, RESIDING AT VATTATHATTEL HOUSE, NEAR LIONS CLUB, MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686667.** **BY ADVS. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHY (P-41) SMT.REENA THOMAS SMT.NIGI GEORGE** **RESPONDENT:** **SINDHU P.B., AGED 44 YEARS, W/O.RAJMOHAN, HONAI NAGAR FLAT, HONAI NAGAR, PULINCHUVADU, MUDAVOOR.P.O., MUVATTUPUZHA, PIN-686669.** **BY SINDHU P.B.,(PARTY IN PERSON)** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 28-09-2020, THE COURT ON 07-10-2020 DELIVERED THE FOLLOWING:** **-:2:-** O.P.(FC) No.239/20 ## **“CR”** ## **JUDGMENT** Dated this the 7[th] day of October, 2020 ## _Bechu Kurian Thomas, J._ This original petition is filed by the husband in a marital dispute challenging an order passed by a Family Court, rejecting his application to direct the wife to undergo medical treatment in a hospital as an inpatient for an alleged 'Borderline Personality Disorder'. 2. The respondent before us is the wife. She married the petitioner on 7.9.2000. She initiated proceedings for divorce before the Family Court, under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty. The husband filed objections controverting all the allegations and took up a contention that the mental condition of the wife was not normal as she was suffering from a peculiar kind of mental disease known as 'Borderline Personality Disorder'. He even alleged that the filing of the divorce petition is an effect of her mental disorder. Proceedings in the case reveal that on 3.7.2019, the husband O.P.(FC) No.239/20 ## **-:3:-** filed an application (I.A. No.919 of 2019) seeking to direct the wife to undergo medical examination for 'Borderline Personality Disorder' and to subject her to medication and strict regime to control her psychosis problem at specified and named hospitals. The Family Court, on the basis of endorsement by both parties, ordered them to appear before a named Doctor for medical examination and directed to produce a certificate. Though pursuant to the said order, both parties appeared before the named Doctor, it is seen from Ext.P7 letter that the Doctor was not able to come to diagnosis due to the reluctance of the wife to stay for observation. However, the Doctor made a prima facie observation that she seems to have an emotionally unstable personality disorder-borderline type, which according to him could be confirmed only by admission and examination. 3. Soon thereafter, another application (I.A. No.1513 of 2019) was filed by the husband seeking a direction to issue an order to admit the wife for seven days in a hospital with the assistance of two women police constables or by arresting her so as to keep her under observation and evaluation by a psychiatrist. The said petition was dismissed by the Family Court by Ext.P10 on 9.12.2019 taking note of the circumstances then in existence but observed that further efforts can be made for O.P.(FC) No.239/20 ## **-:4:-** subjecting the respondent to undergo a medical examination to confirm the alleged mental disorder. 4. The husband filed yet another petition (I.A. No.1 of 2020) seeking a direction to subject the wife to undergo medical treatment as an inpatient for 'Borderline Personality Disorder' and for medication and strict regime to control her psychosis problem in a hospital (relief sought for is almost identical to I.A. No.1513 of 2019). Objections were preferred by the wife and stated that there was no change of circumstances from the earlier allegations made in I.A. No.1513 of 2019 and since the said application was rejected by the court, the same order should govern the present application also. 5. The Family Court, by Ext.P17 order, refused to pass any orders as sought for. While refusing the prayer sought for, the court, however, directed the wife to appear before a psychiatrist of her own choice for a medical examination to ascertain as to whether she is suffering from the mental illness – 'Borderline Personality Disorder' and to produce a certificate to that effect. The husband challenges Ext.P17 order as one without any basis and erroneous in law. 6. We have heard the learned counsel for the petitioner Sri. Mohan Jacob George. The respondent appeared in person and O.P.(FC) No.239/20 ## **-:5:-** argued the matter by herself. She also submitted a note of her submissions. 7. Adv. Mohan Jacob George relied upon the decision in **Sharda v. Dharmpal** [(2003) 4 SCC 493] and canvassed that the matrimonial court has the power to order a person to undergo a medical test. The learned counsel also referred to **Smitha Mathew (Dr.) v. Dr.Prasoon Kuruvila** (2010 (2) KHC 903) and beseeched the court that the conciliatory role assigned in matrimonial proceedings to a Family Court requires the wife to be directed to undergo a psychiatric assessment and consequent treatment. He referred to Section 100 and Section 102 of the Mental Healthcare Act 2017 (for brevity 'MH Act) and submitted that the said Act contemplates a duty to provide treatment to mentally ill patients. On the other hand, Smt. Sindhu, the party in person, submitted that the entire attempt of the husband is to harass her and to create a completely different image about her so as to use the same for other purposes. 8. We have considered the rival contentions. The issue arises out of a proceeding for divorce initiated by the wife alleging cruelty by the husband. Though the husband denies cruelty he alleges that his wife is suffering from some form of mental illness. Various other documents were produced as O.P.(FC) No.239/20 ## **-:6:-** Ext.P8, Ext.P8(a) and Ext.P9 by the husband in an attempt to show that the wife is allegedly suffering from a type of mental disorder. 9. We find from Ext.P10 that all the aforesaid records were made the basis for filing I.A. No.1513 of 2019 seeking a direction to the court to subject the wife for treatment as an inpatient for 'Borderline Personality Disorder'. The said petition was dismissed on 9.12.2019, as per Ext.P10 order, taking note of the facts and circumstances of the case. Within two months of dismissal yet another petition was filed alleging a change of circumstances by producing two certificates from the school where the children are studying and sought the court's intervention. The said application is dismissed by the impugned order. Even while dismissing the application filed by the husband, the court has, by the impugned order, directed the wife to appear before a psychiatrist of her own choice for a medical examination and to obtain a certificate. The wife submitted during arguments that such a certificate has in fact been obtained by her in the meantime. 10. There can be no dispute to the fact that the court has the power to direct the parties to the litigation to undergo a medical test. In fact in the decision reported in **Thathunni** **-:7:-** O.P.(FC) No.239/20 ## **Mooppil Nayar v. Kochunni Nayar** (1958 KLJ 431). This Court had held that the court has got ample powers to call for a report from the medical officer and also to satisfy itself about the condition of the party by a personal examination. It further went on to hold that the examination by a medical officer does not exclude the power of the court to require the alleged lunatic to appear before it for a personal examination. Referring to the facts of the case, this Court had held that before an inquisition is ordered by a court of law, there ought to be a careful and thorough preliminary enquiry and the court ought to be satisfied itself that there is a real ground for such an inquisition. The enquiry by the court must be to satisfy itself that there is a real ground for supposing the existence of an abnormal mental condition which might bring the person to a lunacy. 11. In **Sharda's case** [(2003) 4 SCC 493] the Supreme Court while dealing with the question as to whether a party to a divorce proceeding can be compelled to undergo medical examination held as follows: “ _48. We wish to point out that the question as to whether a person is mentally ill or not although may be a subject matter of litigation, the court having regard to the provisions contained in 0.32 R.15 of Code of Civil Procedure, S.41 of the Indian Lunacy Act as also for the purpose of judging his competence to examine as a_ **-:8:-** O.P.(FC) No.239/20 _witness may issue requisite directions. It is, therefore, not correct to contend that for the aforementioned purposes the court has no power at all. The prime concern of the court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to test which would invade his right of privacy and may in some case amount to battery: but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests._ _49. If the court for the purpose envisaged under 0.32 R5 of Code of Civil Procedure or S.41 of the Indian Lunacy Act can do it suo motu, there is no reason why it cannot do so on an application filed by a party to the marriage._ _50. Even otherwise the court may issue an appropriate direction so as to satisfy himself as to whether apart from treatment he requires adequate protection inter alia by way of legal aid so, that he may not be subject to an unjust order because of his incapacity. Keeping in view of the fact that in a case of mental illness the court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the court may take recourse to such a procedure even at the instance of the party to the lis._ _51, Furthermore, the court must be held to have the requisite power even under S.151 of Code of Civil Procedure to issue such direction either suo motu or_ **-:9:-** O.P.(FC) No.239/20 _otherwise which, according to him, would lead to the truth.”_ ## 12. After arriving at the aforesaid conclusions, the Supreme ## Court in the above mentioned case summarized its conclusions as below: “ _79. To sum up, our conclusions are:_ _1. A matrimonial court has the power to order a person to undergo medical test._ _2. Passing of such an order by the court would not be in violation of the right to personal liberty under Art.21 of the Indian Constitution._ _3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”_ ## 13. Relying upon the judgment in **Sharda's case** (supra), this Court had in **Smitha Mathew's case** (supra) held that: _“In the instant case, we feel that counselling 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 counselling with psychiatric/psychological assistance. Both the husband and wife deserve to be counseled with expert psychiatric/psychological assistance. This is not to say that either requires more of such counseling than the other. In order to remove_ **-:10:-** O.P.(FC) No.239/20 _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 counselling 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. Even though neither in the Hindu Marriage Act 1955 or in any other law is there a provision empowering the Court to issue a direction to a party in a matrimonial proceeding to submit himself/herself to a medical examination. However, in view of the authoritative precedents mentioned above, the Court is always empowered to order such an examination, provided the facts and the circumstances arising in the case warrants such an examination. In **Lalit Kishore v. Meeru Sharma and Another** [(2009) 9 SCC 433] the Supreme Court had held: _“It is difficult to conceive that Family Court cannot be conferred with the jurisdiction to pass an order for medical examination in an appropriate case because when such a report is received, that would facilitate the Court in giving a positive conclusion on the mental condition of the respondent wife.”_ 15. Thus, in cases where the Court is satisfied that a real ground exists to direct a party in the case before it to undergo medical examination and the circumstances of the case warrant such a direction, the Family Court has the power to direct a O.P.(FC) No.239/20 ## **-:11:-** medical examination. However, the aforesaid proposition cannot be stretched to make the court a platform to buttress the rabid ideas of one of the spouses regarding the state of mind of the other spouse, especially in the absence of objective materials to support such beliefs. When such attempts are made, court cannot provide its imprimatur, devoid of the circumstances and the issues arising for consideration in the case. 16. In the instant case, we remind ourselves that the wife is the petitioner, seeking divorce on the ground of cruelty. The husband is defending the case of cruelty alleged against him. While defending the case of cruelty against him, the husband insists repeatedly that the wife must undergo treatment as an inpatient. We cannot countenance such an approach. The wife’s alleged mental illness is not an issue to be decided in the case. Even the certificate relied upon by the husband is not a satisfactory certificate as the same is given only as a prima facie observation and not by any proper medical evaluation. Compelling the wife to undergo psychiatric treatment, that too, as an inpatient, in the facts and circumstances of the case is beyond the scope of the divorce petition filed by the wife. 17. Reference to Sections 100, 101 and 102 of the MH Act is misplaced in the circumstances of the case. Those sections O.P.(FC) No.239/20 ## **-:12:-** apply to completely different sets of circumstances. It has no application whatsoever in the instant case. Section 100 of the MH Act applies in cases where the mentally ill person is found wandering and is incapable of taking care of himself. Section 101 of the MH Act applies in cases where the officer in charge of a police station or any person has reason to believe that a person has a mental illness and is being ill treated or neglected. Section 102 of the MH Act is a consequent action required to be done by a Magistrate, pursuant to Section 101. 18. The purpose behind enacting Sections 100, 101 and 102 of the MH Act 2017 is salutary. It falls in the Chapter of Responsibilities of other Agencies. It is not intended to be used as a sword against any person and that too for the mere asking. The primary requirement is the satisfaction of mental illness as defined under the Act. Orders directing a person to be conveyed to a public mental health establishment or to authorise the admission of a person with mental illness in a mental health establishment are orders that have serious and far reaching repercussions and may create adverse consequences to the affected person. It cannot be done in the absence of proper materials or for the mere asking. It is a provision intended for the benefit of the mentally ill person and not to be used as a O.P.(FC) No.239/20 ## **-:13:-** weapon. Further, a letter from a doctor, which admittedly was issued without carrying out a proper diagnosis, cannot be an objective material for arriving at the conclusion that the person is mentally ill as defined under the MH Act. It is not the mandate of the statute to enter into such conclusions regarding the mental illness of a person without any basis. 19. Further, it was observed by the Family Court in Ext. P10 that, “ _Admittedly, the respondent is having two children and they are now studying in the 10[th] and 6[th] standard and that they are being looked after by the respondent. At present there is nobody to look after the affairs of the children other than the respondent. So, if the petitioner is arrested with the assistance of police and sent to hospital for admitting her for 7 days, definitely it will create more complication and the same will affect the welfare and education of the children also._ ” In fact, it was submitted at the Bar that the wife is a language teacher in a school and that she has been working for the last 15 years. All the above, clearly shows that the wife is not incapable of taking care of herself, nor is she being ill treated or neglected at present, for the purpose of invoking Section 101 of the MH Act. 20. Apart from the above, the impugned order is a plausible conclusion on the facts and nature of the case. The jurisdiction **-:14:-** O.P.(FC) No.239/20 under Article 227 is not one akin to an appellate or even a revisional jurisdiction. When the impugned order is a plausible one, the High Court cannot substitute its opinion in the exercise of the jurisdiction under Article 227, unless the findings are highly erroneous or capricious. 21. Since the impugned order is the only plausible conclusion in the given facts and circumstances of the case, we find no reason to interfere. We refuse to exercise our supervisory jurisdiction and accordingly dismiss this original petition. Sd/- **S.V.BHATTI JUDGE** Sd/- **BECHU KURIAN THOMAS JUDGE** vps The full stop at the end of the first sentence of paragraph No.14 of the judgment dated 07/10/2020 in OP(FC)No.239/2020(R) is substituted by a 'comma' and the word 'However' at the start of the second sentence of the same paragraph is deleted as per order dated 14/10/2020 in OP(FC)No.239/2020(R). Sd/- Deputy Registrar O.P.(FC) No.239/20 **-:15:-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 COPY OF THE PETITION FILED AS O.P.346/2019 BEFORE THE FAMILY COURT, MUVATTUPUZHA.** - **EXHIBIT P2 COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EXT.P1.** - **EXHIBIT P3 COPY OF THE CERTIFICATE DATED 5.3.2020 ISSUED TO THE RESPONDENT'S YOUNGER SISTER -MRS.INDU.P.B. BY DR.SAMEER.M., SACRED HEART HOSPITAL, PAYNKULAM.** - **EXHIBIT P3(a) COPY OF THE CERTIFICATE DATED 5.3.2020 ISSUED TO THE RESPONDENT'S MOTHER MRS.VASANTHAKUMARY BY DR.SAMEER.M., SACRED HEART HOSPITAL, PAYNKULAM.** - **EXHIBIT P4 COPY OF I.A.NO.1513/2019 FILED IN O.P.346/2019.** - **EXHIBIT P4(a) COPY OF THE OBJECTIONS FILED BY THE RESPONDENT IN I.A.NO.1513/2019 FILED IN O.P.346/2019.** - **EXHIBIT P5 COPY OF I.A.NO.919/2019 FILED BY THE PETITIONER IN O.P.NO.346/2019.** - **EXHIBIT P6 COPY OF THE ORDER DATED 29.8.2019 OF THE FAMILY COURT, MUVATTUPUZHA.** - **EXHIBIT P7 COPY OF THE CERTIFICATE ISSUED BY THE PSYCHIATRIST PURSUANT TO EXT.P6 ORDER OF THE FAMILY COURT.** - **EXHIBIT P8 COPY OF THE CERTIFICATE DATED 21.9.2019 ISSUED BY THE SUN MEDICAL & RESEARCH CENTRE, THRISSUR.** - **EXHIBIT P8(a) COPY OF THE CERTIFICATE DATED 23.9.2019 ISSUED BY THE NIRMALA MEDICAL CENTRE, MUVATTUPUZHA.** O.P.(FC) No.239/20 ## **-:16:-** **EXHIBIT P9 COPY OF THE COMPLAINT SUBMITTED BY THE LOCAL MUNICIPAL WARD MEMBER BEFORE THE DY.S.P.MUVATTUPUZHA WITH LEGIBLE COPY. EXHIBIT P10 COPY OF ORDER DATED 9.12.2019 IN I.A.NO.1513/2019 OF THE FAMILY COURT, MUVATTUPUZHA. EXHIBIT P11 COPY OF THE CERTIFICATE DATED 10.12.2019 ISSUED BY THE VIMALAGIRI INTERNATIONAL SCHOOL, MUVATTUPUZHA. EXHIBIT P11(a) COPY OF THE CERTIFICATE DATED 11.12.2019 ISSUED BY THE ST.SEBASTIAN'S HIGHER SECONDARY SCHOOL, ANICADU, AVOLY, MUVATTUPUZHA. EXHIBIT P12 COPY OF THE PETITION FILED BY THE PETITIONER AS I.A.NO.1/2020 ALONG WITH THE AFFIDAVIT. EXHIBIT P13 COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT TO EXT.P12 PETITION. EXHIBIT P14 (18 NOS.) COPY OF THE RECEIPTS EVIDENCING THE PAYMENT OF THE LOAN AVAILED BY THE RESPONDENT SINCE THE YEAR 2018. EXHIBIT P15 COMPACT DISC. EXHIBIT P16 PHOTOGRAPHS TAKEN AT THE TIME OF THE MARRIAGE OF THE PETITIONER AND RESPONDENT. EXHIBIT P16(a) PHOTOGRAPH TAKEN IN THE YEAR 2019. EXHIBIT P17 COPY OF THE ORDER DATED 19.6.2020 IN I.A.NO.1/2020 OF THE FAMILY COURT, MUVATTUPUZHA. EXHIBIT P18 COPY OF THE JUDGMENT REPORTED IN 2003(2) KLT 243. EXHIBIT P19 COPY OF THE JUDGMENT REPORTED IN 2010(2) KHC 903.** O.P.(FC) No.239/20 ## **-:17:-** **EXHIBIT P20 COPY OF THE RELEVANT PORTION OF THE MENTAL HEALTH CARE ACT 2017.** **RESPONDENT'S/S'EXHIBITS:** **NIL**