Important points:
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.

JUDGMENT :

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 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 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 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 proceedi