SANTHI Vs. P SUBBUSAMY

JUDGEMENT

(1.) THE above revision has been filed against the order of the learned Subordinate Judge, Tuticorin, dated 8. 9. 1994 in I. A. No. 61 of 1994 in H. M. O. P. No. 63 of 1992 whereunder the Court below has chosen to allow the application filed in the court below by the petitioner therein, the respondent herein to direct his wife, the first petitioner herein to appear before the district Medical Board, V. O. Chidam-baranar District to examine and submit a report relating to the mental condition of the first petitioner.

(2.) THE respondent has filed H. M. O. P. No. 63 of 1992 in the court below under Sec. 13 (i) (ii) and Sec. 13 (i) (i-b) of the Hindu Marriage Act, 1955, praying for a declaration that the marriage between the first petitioner and the respondent herein held on 29. 4. 1990 is a nullity and thereby dissolve the same. Having regard to the nature and stage of the proceedings in the Court below, it would be inappropriate to deal with the various claims except referring to the salient features necessary for adjudicating the issue raised before this Court in this revision. THE first petitioner and the respondent were married on 29. 4. 1990 at Tuticorin and it is stated that they lived together hardly for two weeks and that the first petitioner is residing thereafter with her parents and for nearly two years, they were living separately. THE second petitioner is stated to be the father of the first petitioner. On the date of the marriage, it is claimed by the respondent, the petitioner in the court below that the marriage could not be consummated, that subsequently it was found out that the first petitioner was not mentally alright, that she would not understand the question put to her and her reply would have no reference to the questions put that she would only follow the dictation to her and could not do anything on her own thinking and she had no mental growth. When a grievance was sought to be made about this to the parents of the wife, it was explained to be due to the shy nature of the girl and the fact that she normally was not used to go out and that in due course, it may be alright. In spite of the respondent taking the first petitioner to her parents' house, it was claimed that there was no improvement in her behaviour, and, therefore, no consummation took place. It is stated that she lacks understanding about her obligations, that her growth of mental condition was such she could not understand anything and, therefore, she was unfit to be a partner and help-mate in life for the respondent. It is also stated in the court below that the wife was taken by her parents to Dr. Vijayarangam Clinic where she was treated for mental illness, that when the respondent went to call on her at the hospital, she did not even recognize him and, therefore, after exchange of notices, the respondent was driven to the necessity of filing the petition for divorce.

(3.) INMOHAMMEDLBRAHIM v. Shaikmohammed,a. I. R. 1949 Mad. 292, a learned single Judge of this Court had an occasion to deal with an application taken by the defendant in the suit before the trial court for an order to appoint a Doctor as Commissioner to examine and report about the mental condition of the plaintiff in the case. When the order as prayed for was granted appointing an expert to examine the plaintiff in that case, the same came to be challenged by means of a revision before this Court. The court held therein as hereunder: '10. As regards the power of the court to compel the attendance of the plaintiff it was not disputed before me on behalf of the petitioner that the court possesses such a power and, indeed, it could not be disputed, in view of the clear language of 0. 3. Rule 1, Civil P. C. The proviso to that rule says: 'provided that any such appearance shall, if the court so directs, be made by the party in person.' This proviso was construed by this Court both in vaiguntathammal v. Valliammai, I. L. R. 41 Mad. 256: A. I. R. 1918 Mad. 1256 and the later case in Ayyannadan v. Seeniammal, 11 L. W. 289: A. I. R. 1920 Mad. 213. In Ayyannadan v. Seeniammal, 11 L. W. 289: A. I. R. 1920 Mad. 213, Krishnan, J. says at p. 293: 'o. 3, Rule 1, proviso is wide enough to enable the court to direct any party to the suit to appear in person whether he be a minor or a major or of sound or unsound mind and it may be done at any stage of the suit: see Vaiguntammal v. Valliammai, I. L. R. 41 Mad. 256: A. I. R. 1918 Mad. 1256. The court has also ample power under O. 16, Rule 14, Civil P. C. to examine not only the parties and the witnesses summoned by them but also other persons whom the court thinks are necessary. If so much is conceded or established the only point is, has the court no jurisdiction to make that power effective" It is said that an expert may be examined but the expert should not have the necessary data to form his opinion by examining the plaintiff. I think the contention so stated reduces the power of the court to a mockery. If a jurisdiction exists in a court, the court has always the right and duty to exercise that power as effectively as possible. It is an inherent jurisdiction of the court to make its power effective even though there is no specific provision in the Code or elsewhere to cover that particular power. It is to cover such cases, I think, Sec. 151, Civil P. C. was enacted. I am, therefore, unable to accept the contention of the learned Advocate-General that the court in such cases is helpless and is not entitled to direct that the plaintiff should be subjected to the examination of an expert whom the court appoints. It is also strenuously urged by the learned Advocate-General on behalf of the petitioner that even, if such an order is made, it is open to the next friend to nullify the effect of that order by not obeying it as there is no provision for ennforcing such an order. It is unnecessary for me at this stage to deal with this somewhat extraordinary contention as I think that when such a situation arises the court would find adequate means of enforcing its order. If the next friend chooses to disobey the order, it would be open to the court to take such steps as it thinks proper in the circumstances. " The court also held that the right and jurisdiction of the court to enquire into the aspect is part of the inherent jurisdiction of the court also. The court also expressed the view that it shall be ensured that minimum inconvenience is caused to the party concerned.