Thomas John v. Maria Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937** **OP (FC).No. 556 of 2015 (R)** **----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OP 408/2013 OF FAMILY COURT,THRISSUR** ## **PETITIONER:** **--------------------------** **THOMAS JOHN, AGED 32 YEARS S/O A.V.JOHN, AKKAPPADICKAL HOUSE, KODIKULAM P.O. THODUPUZHA-685 582, IDUKKI DISTRICT.** **BY ADVS.SMT.K.MEERA SRI.BOBY MATHEW** **RESPONDENT:** **----------------------------** **MARIA JOSEPH, AGED 27 YEARS D/O A.N.J. JOSEPH, ARACKAL NELLISSERY GREEN PARK AVENUE PHASE II, THIRUVAMBADY P.O. THRISSUR-680 022, THRISSUR DISTRICT.** ## **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No. 556 of 2015 (R)** **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **-------------------------------------** **EXHIBIT P1: TRUE COPY OF OP NO:408 OF 2013 DATED 13.3.2013 FILED BY THE PETITIONER PENDING BEFORE THE FAMILY COURT, THRISSUR.** **EXHIBIT P2: TRUE COPY OF I.A.5678 OF 2014 DATED 8.12.2014 FILED BY THE RESPONDENT IN EXT.P1 OP.** **EXHIBIT P3: TRUE COPY OF THE OBJECTION DATED 21.5.2015 FILED BY THE PETITIONER IN EXT.P2 I.A.** **EXHIBIT P4: TRUE COPY OF THE ORDER DATED 6.7.2015 PASSED BY THE FAMILY COURT THRISSUR IN EXT.P2 I.A.** **RESPONDENT'S EXHIBITS** **---------------------------------------** **NIL** //True copy// P.A. TO JUDGE Shg/ ## **C.K. ABDUL REHIM & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - O.P.(F.C.) No.556 of 2015 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of March, 2016** ## **J U D G M E N T** ## **C.K. Abdul Rehim, J.** The petitioner herein is the petitioner before the Family Court, Thrissur in O.P.No.408/2013. The respondent herein is the respondent before the court below. The Original Petition before the Family Court was filed seeking annulment of the marriage between the parties, based on an allegation that the marriage was conducted on concealment about the mental illness of the respondent. By way of an alternative relief, dissolution of the marriage on the ground of cruelty was also sought for. It is the admitted case of both parties that the marital life lasted only for six days and the parties fell apart within a short time. During the course of proceedings before the court below, the parties were referred for counselling. Based on report of the counsellor an expert counselling was also arranged, before a psycho analyst, who in turn suggested that the parties should undergo a detailed psychological evaluation, including O.P.(F.C.) No.556 of 2015 2 intelligence assessment from the Mental Hospital at the Medical College, Thrissur. It is evident that the Family Court had referred both the parties to undergo psychological evaluation before a Medical Board. Report of the Medical Board was to the effect that both the parties have no evidence of psychiatric illness. Thereafter the respondent herein filed I.A.No.5678/2014 before the Family Court seeking direction to the petitioner to undergo detailed potency test before the Medical Board at the Medical College Hospital, Thrissur. In the said interim application, the court below had passed Ext.P4 order, which is impugned in this original petition. 2. The petitioner herein had objected I.A.No.5678/2014 contending that it is not necessary for him to undergo any potency test for the purpose of a decision in the original petition, which is filed seeking nullity of the marriage. But the court below found that the respondent herein had raised an objection in the original petition itself, that the marriage was not consummated due O.P.(F.C.) No.556 of 2015 3 to sexual impotency of the petitioner. It is the specific allegation of the respondent that the petitioner is suffering from erective disfunction and as a result of which it is not possible for him to have vaginal intercourse. The court observed that, when such a contention is raised in the objection filed by the respondent in the original petition, it is an important aspect which need be considered by the court as to whether the marital relationship failed due to any such sexual disfunction of the petitioner herein. Therefore the court found that it is a material aspect which need be looked into and ascertained on the basis of expert opinion. Hence, finding that the petition is liable to be allowed, the petitioner herein was directed to appear before the Medical Board at the Medical College Hospital for getting opinion as to his potency. 3. Arguments raised on behalf of the petitioner is that, the impugned order passed by the court below directing the petitioner to undergo potency test was totally unwarranted, in the context of the issue agitated before the O.P.(F.C.) No.556 of 2015 4 court below. It is pointed out that, the original petition is one filed seeking nullity of the marriage based on the allegation that there was concealment about the alleged mental illness of the respondent. On the alternative, relief is sought for to dissolve the marriage on the alleged ground of cruelty caused on the petitioner by concealment of the mental illness. Under such context, the issue which need to be decided by the court below is only as to whether the petitioner is entitled to have an order of nullity or dissolution of the marriage based on the above said ground. For deciding such an issue there is no necessity for the court to ascertain potency of the petitioner, is the contention raised. 4. Per contra, learned counsel for the respondent pointed out that, the allegation of impotency is a clear defence raised in the objections filed in the Original Petition itself. It is left open to the respondent to take appropriate steps to substantiate such an allegation, which is taken as a contention from her side. It is further pointed out that, in O.P.(F.C.) No.556 of 2015 5 adjudicating a matrimonial issue it is imperative on the Family Court to take steps to get expert medical opinion on any such issues for promoting welfare of the family or for assisting the Family Court in discharging its functions in a better manner. In this regard it is pertinent to note that the Hon'ble Supreme Court in the decision in **Sharda v. Dharmpal [(2003) 4 SCC 493]** it is held that the power conferred by virtue of Section 12 of the Family Courts Act, 1984 is wider in nature, which can be exercised to find out the truth and to arrive at a reasonable conclusion regarding the issues involved in matrimonial dispute. Such power can be exercised by the court below either suo motu or on application on any of the parties. A similar view has been taken by a Division Bench of this Court in **A.V. Pradeep Kumar v. C.K. Sindhu [2009 (4) KLT 501]** . 5. In the case at hand, since it is evident that the allegation of impotency of the petitioner is raised as a ground of defence, it is necessary to permit the respondent to adduce evidence to substantiate such an allegation. In O.P.(F.C.) No.556 of 2015 6 this respect, the only course available to the respondent is to seek direction from the Family Court to compell the petitioner to undergo medical examination. Further, as observed above, it is also obligatory on the part of the Family Court to seek expert medical opinion, if found necessary, for arriving at the truth, in order to take appropriate steps in promotion of the welfare of the family or to have a proper adjudication of the issues agitated. Therefore, we do not find any illegality, irregularity or impropriety in the order impugned. Nonetheless, there is any error of jurisdiction committed by the Family Court. 6. Learned counsel for the petitioner submitted that, in compliance of the impugned order the petitioner had approached the Medical Board on more than one occasion, but the required test could not conducted because of one or other reasons. It is informed that the petitioner is now in Germany, undergoing a postgraduate course and he could come back to India only after about two years. On that basis, counsel made an appeal to this court to permit him to O.P.(F.C.) No.556 of 2015 7 undergo the potency test from any competent medical institution at Germany. We do not think that it is a matter which need to be considered in this original petition by this court. It is left open to the petitioner to approach the Family Court either seeking extension of time for undergoing the medical examination or seeking permission to undergo the medical test at Germany. Needless to observe that if any such approach is made the Family Court will consider the same and shall take appropriate decision, considering all attendant circumstances and prescribed procedural aspects. The above original petition is dismissed, subject to observations contained hereinabove and subject to liberty reserved to the petitioner as mentioned above. Sd/- **JUDGE** Sd/- **JUDGE** **==> picture [404 x 10] intentionally omitted <==** **K.P. JYOTHINDRANATH** shg/14/3 //True copy// P.A. TO JUDGE