ANKITA Vs. RUBAL GULATI

JUDGEMENT

(1.) The revision is against the order directing a medical examination to be conducted on the wife on a plea by the husband that the wife is suffering from such a serious mental illness which is of incurable kind and that he cannot be expected to live with her. The petition is filed under Section 12 of the Hindu Marriage Act, 1955, seeking for annulment of marriage by contending that the fact of mental illness had been suppressed and the petition has been filed within the time permitted by law for annulment. The Court has allowed the application despite an objection taken by the wife. The wife is not prepared to subject herself to any medical examination.

(2.) The counsel for the petitioner would contend that there is no scope for a judicial compulsion for medical examination. The counsel for the respondent states that the petitioner never appears in Court and she has been deliberately staying away from the Court process to prevent the Court from eliciting the best evidence which is possible. The counsel would rely on the judgment of the Supreme Court in Lalit Kishore Versus Meeru Sharma and another, 2010 AIR(SC) 1240) that held that although the Hindu Marriage Act itself does not contain a provision for medical examination for ascertaining the medical condition of the wife, the Court can order medical examination in exercise of inherent power under Section 151 CPC. The counsel would rely on a three member Bench of the Supreme Court in Sharda Versus Dharmpal, 2003 AIR(SC) 3450 ) contend that the matrimonial Court has power to order a person to undergo medical test. In both these decisions, the point urged and decided was whether a Court has a power to direct medical examination. In this case, the challenge is not that the Court does not have power. The challenge, however, is against the compulsion sought to be made against the petitioner for subjecting herself to medical examination. Sharda's case actually was considering the power of the Court in the context of whether an order passed by a Court for medical examination would amount to violation of the right to personal liberty under Article 21 of the Constitution of India. The Court would normally be looking for strong prima facie case and sufficient material before it for directing such a medical examination. Sharda dispensation itself is also an authority that if in spite of an order, the respondent refuses to submit himself/herself for medical examination, the Court will be entitled to draw an adverse inference against him/her. In this case, the revision itself is a vindication of her assertion that she does not want to subject herself to medical examination. This was surely an occasion where the wife could have taken an opportunity to disprove what the husband had been contending for. She is now allowing for drawing of an adverse inference against her. She is entitled to take such a course. The husband is entitled to argue on the basis of materials brought before the Court that the wife was incurably of unsound mind and if such medical evidence that he claims that he has, he will be entitled to rely on such medical evidence and urge that the wife was undergoing treatment for mental illness and that her present state is such that he could not be expected to live with her and the marriage would require to be annulled. I cannot find any reason to compel the wife to undergo the test of which she is not willing to submit herself.

(3.) The order passed already is set aside and the civil revision is allowed.