IMPORTANT POINT
The power to order a person to undergo a medical test should be exercised only if there is strong prima facie evidence and sufficient material to direct such a test.

ORDER :

The petitioner is knocking at the doors of this Court in the subject petition calling in question an order dated 28-07-2023 passed by the III Additional Principal Judge, Family Court, Bengaluru on I.A.No.III filed by him under Order XXVI Rule 10A of the CPC in M.C.No.5481 of 2022.

2. Heard Sri N.R. Nagaraj, learned counsel appearing for the petitioner and Smt. Latha G., learned counsel appearing for respondent No.1.

3. The facts, in brief, germane are as follows:-

The petitioner and 1st respondent are husband and wife respectively and the 2nd respondent is the father-in-law of the petitioner. The petitioner and the 1st respondent got married on 26-11-2020. Several grievances and disputes arose between the two and on 28-01-2021 it is alleged by the petitioner that the wife permanent moves to her parents house along with her clothing and has not returned back to the petitioner till date. The respondent/wife on 14-06-2022 registers a complaint before the K.P. Agrahara Police Station for offences punishable under Section 498A of the IPC r/w Sections 3 and 4 of the Dowry Prohibition Act. The Police, after investigation, have filed a charge sheet against the petitioner/husband in C.C.No.38114 of 2022. After the complaint was filed by the 1st respondent/wife, the petitioner files a petition seeking annulment of marriage before the jurisdictional Family Court on the ground of cruelty in M.C.No.5481 of 2022. The issue in the lis does not concern merit of the claim of the petitioner or defense of the wife. The petitioner files an application before the concerned Court in I.A.No.III in M.C.No.5481 of 2022 to refer the wife to a Board of Psychiatrists at NIMHANS for medical examination. The application was filed on 15-03-2023. The wife files her objections appending several documents to demonstrate that she was not mentally unsound as was alleged by the petitioner for her to be sent for medical examination to NIMHANS. The application was not considered by the concerned Court favourably in favour of the petitioner. Therefore, he is before this Court calling in question the said action of the concerned Court keeping I.A.No.III in abeyance.

4. The learned counsel appearing for the petitioner submits that he has evidence of the wife not being in sound mind as at the out-patient examination at Victoria Hospital it is the assessment of the doctor that her mental age is 11 years and 8 months and has only borderline intelligence. He would seek to contend that this is the prime reason for annulment of marriage. If she is not of sound mind and appropriate intelligence and is not of 18 years old girl, the marriage itself is void. Therefore, the respondents have together cheated the petitioner in marriage. It is his further contention that the wife has admitted to consuming of certain medicines/drugs from the age of 13 years. Therefore, all these factors should have weighed the concerned Court to refer the wife to NIMHANS for a detailed psychiatric medical examination.

5. Per contra, the learned counsel representing the 1st respondent/wife would vehemently refute the submissions to contend that the petition is filed not seeking annulment of marriage on unsound mind of the wife. It is filed on the ground of cruelty. The learned counsel would submit that she has placed plethora of documents before the concerned Court to demonstrate that the 1st respondent is a singer, a teacher and is now attending Government Polytechnic for Women to continue her studies and has also passed several technical examinations and would question the petitioner that if a lady has these traits it is unimaginable as to how she is unsound mind or her mentally age is 11 years and 8 months. She would submit that the petitioner is trying to seek divorce on these grounds by referring the matter to NIMHANS and getting the stamp of unsound mind put on the 1st respondent/wife.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have p