SINOSE v. SHANCY; ACHANDI KOCHAPPAN; MARY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942** **OP (FC).No.481 OF 2020** **OP 634/2016 OF FAMILY COURT, IRINJALAKUDA** ## **PETITIONER** **SINOSE, AGED 38 YEARS S/O THAZHEKKADEN JOHNSON, THRIKKOOR VILLAGE AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** ## **RESPONDENTS** **1 SHANCY, AGED 30 YEARS D/O ACHANDI KOCHAPPAN, THURUTHY PARAMBU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK, REPRESENTED BY FATHER AND THURUTHY PARABU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK.-680731 2 ACHANDI KOCHAPPAN AGED 74 YEARS THURUTHY PARABU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK.-680731 3 MARY AGED 64 YEARS ACHANDI KOCHAPPAN, THURUTHY PARABU DESOM, ALOOR VILLAGE, CHALAKKUDI TALUK.680731** **R1-3 BY ADV. SRI.N.L.BITTO** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(FC).481/2020 2 ## **JUDGMENT** ## **Dated : 4[th] January, 2021** ## K.Vinod Chandran, J. 1. This Original Petition is filed against the order in I.A.636/2019 in G.O.P.634 of 2016. I.A.636/2019 is an application filed by the father for permanent custody of the minor child born in the wedlock of the petitioner and the 1[st] respondent. The prayer in the IA was for sending the 1[st] respondent for medical examination by a team of medical experts including a Psychiatrist. The allegation is also that the 1[st] respondent is suffering from mental illness and incapable of looking after the minor child. 2. The learned Family Court Judge found that earlier when a joint divorce petition was filed, there was no such contention taken by the petitioner. It is the submission of the learned counsel for the petitioner that when a joint petition is filed, there would be no such contention taken and often to have OP(FC).481/2020 3 quietus, the mental illness of one of the parties would not be mentioned. This does not preclude the contention being taken up in the Guardian O.P where welfare of the child is the paramount consideration. It is the contention of the father of the child that the mother, due to her mental condition is incapable of looking after the child. 3. The learned counsel also pointed out that there was an averment even in paragraph 7 at the time of instituting the OP about the mental illness. The averment in paragraph 7 of the originally instituted GOP is only to the extent that the 1[st] respondent was taken for consultation before a Psychiatrist and then on her insistence, she was send with her parents. While sending the 1[st] respondent with her parents, the petitioner is also said to have entrusted money with the parents for further consultation with the Psychiatrist. It is submitted that later to that, parents of the 1[st] respondent has called the petitioner and asked him not to enquire further about the 1[st] respondent and that she OP(FC).481/2020 4 is not interested in talking to him. The learned Counsel for the respondent alertly points out that if the allegation is that the 1[st] respondent is of unsound mind then the divorce by way of mutual consent would be vitiated. 4. We find that the allegation with respect to the mental condition of the 1[st] respondent being to the extent of causing prejudice to the welfare of the minor child is one taken up by the amendment carried out to the original pleadings. The amendment also is to the effect that the situation has aggravated. We quite realize that the divorce may be vitiated if the respondent -wife is found incapable of deciding for herself, but that finding will have to be related to the date of giving consent. In any event that cannot restrict an enquiry; if there is sufficient material because, in the instant proceeding the welfare of the minor is the crucial issue. 5. The learned counsel for the petitioner submits that medical records are produced OP(FC).481/2020 5 before the Family Court and that the doctor who treated the 1[st] respondent is also being examined. It is submitted that already an application is pending before the Court for appointing a guardian for the 1[st] respondent. 6. Taking the entire circumstances into consideration, we are of the opinion that I.A.1744/2017 filed for appointing a guardian for the 1[st] respondent, shall be taken up first and the Family Court shall conduct an enquiry, in accordance with law and decide on the same. I.A1744/2017 was pending before the Family Court before the order impugned was passed and even prior to the application, leading to that order, was filed. We also make it clear that if the Family Court is satisfied that an expert opinion is necessary, then the Family Court will be entitled to make such orders as held in **Roy Thomas v. Lekha Roy (2019 (1) KLT, 957)** and . **Rajmohan v. Sindhu (2020 (6) KLT 323)** 7. In **Rajmohan** the Court elaborately dealt with the power of the Family Court and noticed the dictum in **Sharda v. Dharmpal** OP(FC).481/2020 6 **(2003) 4 SCC 493** , that a matrimonial Court has the power to order a medical test, which would not result in violation of personal liberty and where there is a strong _prima facie_ case supported by sufficient materials available before Court; then if the party refuses to comply with the order, the court could draw an adverse inference against that party. However in that case an order was declined since there the wife had filed for divorce on the ground of cruelty and the husband had opposed it _inter alia_ on the ground of alleged mental illness. The Division Bench found that the mental illness of the wife was not a relevant issue to be decided in that case. 8. **Roy Thomas** however directed consideration of the issue whether the respondent wife was capable of protecting her interest in the litigation; on which there was no finding entered by the lower Court. There, though an interaction was carried out the finding was only that the respondent is capable of understanding things and there was OP(FC).481/2020 7 no clear finding as to her capacity to defend herself fully. Here too, there is a petition pending for consideration of appointment of guardian, which petition was filed even before the present application for a direction to send the respondent-wife for medical evaluation. In the fitness of things the Family Court ought to have first considered the I.A filed at the earlier point of time for appointment of a guardian. A medical examination, as has been found by the Supreme Court, can be ordered if the Court is _prima facie_ satisfied; on the materials produced, as also the enquiry conducted by interacting with the respondent, that an expert opinion is required. Hence only to facilitate consideration of that earlier application the order impugned is set aside; lest otherwise the findings there would hamper such consideration. We make it clear that we have not looked at the merits of the matter and the setting aside is only to facilitate a consideration as envisaged in the cited precedents. We direct the Family OP(FC).481/2020 8 Court to keep in mind that in adjudicating upon the custody of minor children, by either of the estranged parents the paramount consideration is also of the welfare of the child. 9. With the above observation, the Original Petition is disposed of. No order on Costs. SD/- **K.VINOD CHANDRAN Judge** **SD/-** **M.R.ANITHA Judge** Mrcs/6.1. OP(FC).481/2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF JUDGMENT DATED 26.05.2015 IN OP NO.895/2014.** **EXHIBIT P2** **TRUE COPY OF THE ORDER DATED 06.06.2016 BY THE METROPOLITAN TRIBUNAL.** **EXHIBIT P3 TRUE COPY OF THE AMENDED GOP 634/2016 DATED 1/8/2016 ON THE FILE OF FAMILY COURT, IRINJALAKKUDA.** **EXHIBIT P4 TRUE COPY OF THE INTERIM APPLICATION NO.636/2019 DATED 05/04/2019.** **EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 09/10/2019 OF THE RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE ORDER DT 16/09/2020 IN IA 636/2019 IN OP 634/2016.** **EXHIBIT P7 TRUE COPY OF THE IA 1744/2017 DATED 17/7/2017 IN OP 634/2016 ON THE FILE OF THE FAMILY COURT IN IRINJALAKUDA.**