The relevance of medical evidence and the power of the Family Court to order medical examination in divorce proceedings under S.13(1)(iii) of the Hindu Marriage Act.

JUDGMENT :

Kauser Edappagath, J.

This Original Petition is filed by the wife in a marital dispute challenging an order passed by the Family Court allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it to assess her mental condition.

2. The husband is the respondent in this original petition. The petitioner and the respondent got married on 19/1/2014. The husband initiated proceedings for divorce before the Court below u/s 13(1)(iii) of the Hindu Marriage Act on the ground of mental disorder. The husband took up a contention that the mental condition of the wife was not normal as she was suffering from obsessive compulsive disorder as well as borderline personality disorder. The husband filed a petition before the Court below as IA No.611/2019 (Ext.P3) to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose. The wife filed objection statement opposing the same. After hearing both sides, the Court below allowed the petition as per Ext. P5 order and directed the wife to appear before the medical board to be constituted at the Medical College Hospital, Kozhikode to assess her mental condition. The wife challenges Ext.P5 order in this Original Petition.

3. We have heard the learned counsel for the petitioner Sri.T.R.Harikumar and the learned counsel for the respondent Sri.Sharan Shahier.

4. The learned counsel for the petitioner submitted that the power of a Family Court to order a person to undergo medical test ought to be exercised only where the applicant establishes a strong prima facie case. The counsel further submitted that, in the absence of any finding that the respondent has established a prima facie case, the Family Court erred in allowing Ext.P3 petition preferred by the respondent. The counsel also submitted that subjecting the petitioner to undergo medical examination, without assigning any reason for issuing such a direction, is in contravention of the Right to Life of the petitioner guaranteed under Article 21 of the Constitution of India. Per contra, the learned counsel for the respondent submitted that in order to establish the case set up by the husband that the wife is suffering from obsessive compulsive disorder and borderline personality disorder, it is absolutely necessary that the wife is examined by a medical board to assess her mental condition and that the respondent has established a strong prima facie case.

5. We have anxiously considered the rival contentions. The issue arises in a proceedings for divorce initiated by the husband alleging mental disorder on the part of the wife. It is settled that the Court has power to direct the parties to the litigation to undergo a medical test. The Supreme Court of India in Sharda v. Dharmpal [(2003) 4 SCC 493] has held that even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India, a matrimonial Court has the power to order a person to undergo a medical test and such a direction need not be in violation of any right to personal liberty. It was further held that while exercising the power to order a medical test to be undergone by a person, the Court should exercise restraint and there must be strong prima facie case and sufficient material before the Court to pass such an order. The said decision has been followed recently by the Division Bench of this Court in Rajmohan L v. Sindhu P.B. [2020 (5) KHC 447]. It was held that the Court is always empowered to order medical examination, provided that the facts and circumstances arising in the case warrants such an examination.

6. As stated already, the petition for divorce was filed by the husband invoking S.13(1)(iii) of Hindu Marriage Act (for short 'HMA') alleging that the wife is suffering from mental disorder. S.13(iii) reads as follows:

“13. Divorce.—(1) Any ma