IN THE HIGH COURT OF KERALA
R. Basant, M.C. Hari Rani, JJ.
Smitha Mathew – Appellant
Vs.
Prasoon Kuruvilla – Respondent
I.A. No. 1286 of 2010
Decided On : 08-06-2010
Family Courts Act, 1984 - Sections 7 & 9 - Wife, who has suffered a decree for divorce on the ground of cruelty and desertion, is the appellant in this Mat. Appeal - This Mat.Appeal has been taken up for consideration along with another Mat.Appeal which relates to an order regarding custody of the only child- a young boy aged 7 years born in the wedlock - Held, Court is taking pains to convey the purpose for which we intend to refer the parties to counseling with psychiatric assistance lest it be even incorrectly assumed that there is any inadequacy in our perception on the part of the husband who opposes such prayer - Expertise in counseling can come from any competent source - Court is not persuaded to grant the relief claimed in the petition; but Court is satisfied that the relief can be moulded appropriately - Petition Allowed.
R. Basant, J.
The wife, who has suffered a decree for divorce on the ground of cruelty and desertion, is the appellant in this Mat. Appeal. This Mat. Appeal has been taken up for consideration along with another Mat. Appeal has been taken up for consideration along with another Mat. Appeal 265 of 2010 which relates to an order regarding custody of the only child-a young boy aged 7 years born in the wedlock. The wife is the appellant in that appeal also.
2. Conscious of the conciliatory role, which this Court is bound to play in a matrimonial proceedings, we had attempted to interact with the parties in the chamber in the presence of counsel and bring them to a harmonious settlement.
3. To put it in a nutshell, the appellant/wife is unwilling for a divorce. She badly wants are-union with the husband. In the interest of her young child also, she prays that the matrimonial tie may not be put an end to and every effort may be made to keep the matrimonial tie alive and active.
4. We had a number of sessions with the parties in the chamber in the presence of their counsel. The wife appears to feel that counselling is necessary to remove the misunderstanding between the parties and persuade them to embark on a harmonious course. The husband is unwilling for this course. According to him, the Rubicon has already been crossed and the wife has no bona fides in her assertion that she wants reconciliation and reunion.
5. The wife particularly informs us that the husband is labouring under some misunderstanding and misappreciation of facts. She has a theory that this is induced because of some post physical ailment complication which he has. If he is properly counselled with psychiatric assistance, those misgiving will give room for a harmonious settlement between the parties. In the course of the discussions with us in the presence of the counsel, the wife even offers that if she is convinced that the husband really wants to separate from her and that decision is not influenced by any illness or complications that have developed consequent to his ailments, she may even be prepared to a course of honourable parting of ways as friends. She insisted that there may be counselling with psychiatric assistance.
6. The husband was not willing to that course in the course of efforts for conciliation and it is, in these circumstances, that the present application has been filed by the wife. The husband did not evidently appreciate the suggestions made in the course of our interactions and we find that the lawyer, who appeared for him earlier, has been changed and anew counsel is appearing for him now.
7. In the petition, there is a prayer that the husband may be subjected to psychiatric test and evaluation. This prayer is countered effectively by Shri.Mathai Manual Paikaday, the learned senior counsel with the argument that no relief whatsoever is claimed in the proceedings for divorce on the basis of the alleged ailment or psychiatric inadequacy of the husband. We agree that we do not find it necessary at all to subject the husband to any psychiatric test in order to give any relief in the proceedings.
8. The learned Counsel for the husband places reliance on the decision of the Supreme Court in Sharda Vs. Dharmpal, and advances the contention strenuously that the court must arrive at a finding that the applicant has established a strong prima facie case before passing an order subjecting a party in a matrimonial litigation to a psychiatric test. We completely agree with the learned Counsel and we have no quarrel with the proposition of law at all.
9. Sri. Chidambaresh, Senor counsel appearing for the wife, places reliance on paragraphs 34 and 36 of the same decision that is Sharda (supra) and contends that "Medical examination by experts in the field may not only help the court to reach the truth, it may also lead to removal of misunderstanding between the parties. It may bring the parties to terms."
10. The learned Counsel further relies on paragr
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