IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 23^RD DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 OP (FC) NO. 107 OF 2022 AGAINST THE ORDER/JUDGMENT IN OP DIV 560/2016 OF FAMILY COURT, PATHANAMTHITTA PETITIONER:

“X”

BY ADVS.

D.KISHORE ARYA JOSEPH RESPONDENT:

“Y”

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

A. Muhamed Mustaque, J The petitioner is the respondent in O.P (Div) No.560 of

2016 on the file of the Family Court, Pathanamthitta. The above original petition was filed by the respondent herein for divorce. The respondent moved I.A. No.2337 of 2019 seeking direction against the petitioner herein to appear before the Medical Board of Pathanamthitta District Hospital. The above interlocutory application was filed to prove the respondent’s allegation against the petitioner that the petitioner is suffering from Hypogonadism, Ercetile dysfunction and Non-ejaculation, which was allowed. Challenging the same, the petitioner approached before this Court in O.P (FC) No.190 of 2020. This Court dismissed the petition on 10.06.2020.

2. Thereafter, the Family Court proceeded with trial.

The respondent’s examination was over on 23.09.2021. The case posted for evidence of the petitioner herein on 5.10.2021, 11.10.2021 and 21.10.2021. The petitioner appeared before the Family Court on 21.10.2021. On that day a submission was made on behalf of the petitioner that he was ready to appear before the Medical Board. He filed I.A No.4 of 2021 in O.P No.560 of 2016 of the Family Court, Pathanamthitta expressing his willingness to comply with the earlier order. The respondent filed a counter affidavit contenting that the petitioner has undergone continuous medical treatment for illness and admitted to unauthorised medical centers for long periods. It is also contended that the petitioner has managed his basic sexual disorders, infirmity and other bodily problems he had in the past.

3. The Family Court dismissed the petition filed by the petitioner for complying with the earlier orders to appear before the Medical Board stating that the petitioner was avoiding the medical examination by saying one or other reasons and the present petition is only a ruse to prolong the matter.

4. It is to be noted that the respondent in the counter affidavit itself has not stated the requirement of the petition for undergoing medical examination. The petitioner apprehends that this order would lead to take an adverse inference against the petitioner and he would be prejudiced in the trial.

5. We find no reason to interfere with the impugned order. The Family Court shall not take any adverse inference against the petitioner based on the present order. If the Family Court is proposed to take any adverse inference against the petitioner for non appearance before the Medical Board, it can be taken only after ascertaining the explanation of the petitioner for the non appearance of the Medical Board. If the petitioner had a genuine reason for non appearance before the Medical Board, he can very well state the same before the Court during the trial. The Family Court is bound to examine such explanation of the petitioner before passing orders, if any, on such conduct of the petitioner. We leave open the matter to be decided by the Family Court at an appropriate stage. The original petition is therefore, disposed of without interfering with the impugned order and clarifying the impugned order as above. The petitioner shall produce a copy of this order before the Family Court and also serve this order on the learned counsel appearing for the respondent before the Family Court. In the above facts and circumstances, we also find no reason to issue notice to the respondent as there was no adverse order passed against the respondent.

6. The petitioner seeks one weeks time to appear before the Family Cour