Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that to get a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is necessary for the party seeking divorce to prove that the other party’s unsoundness of mind is incurable or that the mental disorder is of such kind that the petitioner cannot be reasonably expected to live with his/her spouse.
The instant petition was filed by the wife in a marital dispute challenging the Family Court’s Order allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it for the assessment of her mental condition.
Husband had initiated the divorce proceedings before the Court under Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental order. He added in his submissions that the mental condition of the wife was not normal as she was suffering from obsessive-compulsive disorder as well as a borderline personality disorder.
The husband filed a petition before the Court below to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose, but the wife objected the same.
Analysis, Law and Decision
Bench while analysing the facts and circumstances of the cases stated that the Court has the power to direct the parties to the litigation to undergo a medical test.
Further, Court referred to the Supreme Court decision in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was 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.
“…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.”
In the present matter, wife’s alleged mental order is an issue to be decided.
High Court expressed that, in order to get a divorce decree under Section 13(1)(iii) of HMA, the husband must establish that unsoundness of mind of the wife is incurable or her mental disorder is of such kind and to such an extent that petitioner cannot reasonably be expected to live with her spouse.
The Family Court has the power to direct a party to appear before a medical board to undergo a medical examination and the question of such action being violative of Article 21 of the Constitution of India would not arise.
It was noted that the husband had produced documents wherein it was stated that the wife was treated by the psychiatrist for the alleged illness. The said documents were perused by the lower court.
“The fact that the wife’s alleged mental disorder is an issue to be decided in the case itself constitutes a prima facie case.”
Medical Board’s opinion regarding the medical condition of the wife may be of utmost importance for granting or rejecting the prayer for a decree of divorce under Section 13(1)(iii) of the HMA.
Further, while concluding its decision, Bench added that the above-stated opinion is relevant under Section 45 of the Evidence Act.
When a party to a litigation alleges existence of certain facts, the Court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged.
Therefore, the Family Court’s decision was justified in its order and no interference was required.[Devika M. v. Shibin Prakash, 2021 SCC OnLine Ker 1235, decided on 10-03-2021]
Advocates before the Court:
Counsel for the petitioner Sri. T.R. Harikumar
Counsel for the respondent Sri. Sharan Shahier.