K. Jasmine Kirubakani vs K. Balasundaram on 21 April, 1995

    K. Jasmine Kirubakani vs K. Balasundaram on 21/4/1995

ORDER

   1. This petition coining on for hearing on Friday, the twenty fourth day of
February, 1995, upon perusing the petition, the order of the Court below and
upon hearing the arguments of Mr. K. Govinda-rajan. Advocate, for the petitioner
and of Mr. A. Shanmughavcl, for M. s. M. Balasubra-manian and V.
Meenakshisundaram, Advo-cale for the respondent, and having stood over for
considei ation till this day, the Court made the following order: -

     The above revision has been filed against the order of the learned District
Judge, Tulicorin dated 14-10-1993 in I.A. No. 61 of 1993 in l.D.O.P. No. 22 of
1992 whereunder the application filed by the respondent/husband, petitioner in
the Court below to direct the petitioner herein to a psychologist or a pane of
psychologists at Madurai Rajaji Medical College Hospital, Madurai, for
assessment of I.Q. (Intelligence Quotient) and the level of intelligence. The
said application came to be allowed by the Court below on 14-10-1993.

   2. The respondent herein filed I.D.O.P. No. 22 of 1992 under Sections 18 and
19(3) of the Indian Divorce Act, 1869 seeking for a declaration that the
pretended marriage solemnised between the petitioner and the respondent on
7-2-1990 at All Saints Church, South Authur, V.O.C. District may be declared as
null and void and non est in law. In support of the claim for d vorce, the
respondent/husband stated that the petitioner has been working as a reporter in
'Dina-thar' and he has been permanently residing at Madras, that his brother-in-
law arranged for the marriage in question and he had to rely only upon his
brother-in-law and a marriage broker since otherwise the family of the
petitioner/ wife were utter strangers. It has been stated that on 10-11-1989 the
respondents saw the petitioner for a few minutes and the marriage was solemnised
on 7-2-1990 and though the petitioner was aged 24 years, her behaviour was that
of a girl of a seven years old. Certain instances have been narrated by the
respondent in the petition in the Court below to come to the conclusion that the
petitioner is an incurable lunatic at the time of marriage and that the
respondent has been cheated by suppressing the said fact. It was also stated
that shocked at the behaviour of the petitioner, the respondent took her to Dr.
Vijayarangam of Tuticorin and that the said Doctor told the respondent that the
mental faculty of the petitioner was affected, retarded and lacked growth.
Contending that the marriage has been brought about by material suppression
about the mental condition of the petitioner, who is said to be a lunatic of
incurable stage at the time of marriage, it is claimed that the marriage is null
and void and non est in the eye of law. After exchange of notices, the petition
came to be filed on the view that the petitioner was a lunatic and legally unfit
and incompetent to enter, into a contract of marriage. The petitioner herein
disputed and decided the claim of the respondent. Thereupon, the petitioner has
taken an application in I.A. No. 61 of 1993 to refer the petitioner to a
Psychologist or a panel of Psychologists at Madurai Rajaji Medical College
Hospital, Madurai for assessment of I.Q. (Intelligence Quotient) and the level
of intelligence. The said application was contested by filing a counter
affidavit by the order under challenge dated 14-10-1993. The application came to
be allowed by the learned District Judge. Hence, the revision.

   3. The main case of the respondent is that though the respondent filed I. A.
No. 37 of 1992 to have the mental condition of the petitioner ascertained and
the same was allowed, it was by mistake and oversight stated therein that the
petitioner was a lunatic. It has been also stated that the word 'lunatic' has
been loosely used instead of specifically using the word 'idiot' claiming that
the said fact resulted in the Court in not getting a proper use the application
in question came to be filed for the second time claiming that the petitioner is
an idiot whose mental capacity has not grown with her age and that the proper
intelligence level can be only ascertained by a qualified clinical Psychologist.
It has also been stated that the person who examined her in his report stated
that he had not made intelligence test to assess her intelligence and,
therefore, the present application became necessary to have her level of
intelligence ascertained and assessed by a qualified Psychologist. This
application was opposed by filing a counter affidavit contending that the object
of the petitioner is to get somehow a report of this choice having failed in
this attempts to prove the charges and allegations/against the petitioner by the
respondent about her mental condition. It has also been contended for the
respondent that all the necessary tests were carried by the Doctors at the
instance of the respondent pursuant to the orders made in LA. No. 37 of 1992 and
the petitioner cannot be compelled to be sent to Madurai for another Medical
Examination. The Court below, after con- sidering the submissions of the learned
counsel appearing on either side, allowed the application on the ground that to
effectively adjudicate and decide Ihe claim made in the main I.D.O.P. the report
about the mental condition and calibre of the petitioner is necessary and that,
therefore, it would be in the interest of both parties concerned to allow the
application and issue the direction as prayed for.

   4. Mr. K. Govindarajan, learned counsel for the petitioner, strenuously
contended that the order of the Court below is liable to be set aside in that
the same came to be passed contrary to law. It is contended that the petitioner
having once been constrained to appear before a competent Psychologist and the
Court having been furnished with the report, there was no justification for the
second examination and that the Court should not have entertained the petition
filed by the respondent once again. It was also contended that the reasons
assigned by the Court below for allowing the examination in question once again
with respect of the mental condition or mental capacity of the petitioner
committed a grave error of law and the application ought not to have been
allowed. The learned counsel for the respondent M. A. Shanmughavel while
adopting the reasoning of the Court below, contended that the claim made in the
second application is justified on the very report of the Medical Officer who
examined the petitioner earlier and that on the earlier occasion, there was no
assessment of the mental faculties since the direction was to ascertain whether
the petitioner was a lunatic and not with reference to the mental balance and
capacities after subjecting her to the intelligence lest to assess her
intelligence. Consequently, it is vehemently contended for the respondent that
the order passed is in the interest of both parties and would help the effective
adjudication of the issue raised in the proceedings and that, therefore, there
is no scope for need for interfering in the order of the Court below.

   5. A reference may be made to some of the judicial pronouncements placed
before me for consideration by the learned counsel appearing on either side. In
AIR J 934 All 273 (Mt. Titli v. Alfred Robert Jones), a Division Bench of the
Allahabad High Court had an occasion to consider the issue in the context of
Section 19 of the Indian Divorce Act. It was held therein that any state of mind
which falls short of lunacy or idiocy cannot be allowed to be a ground for
annulment of a marriage and that it would be a dire calamity if it could be said
as a matter of law that a marriage entered into by a person who is neiter a
lunatic nor an idiot, is void, simply beause one of the parties lacks in
intelligence, although he is able to understand the nature of the bonds of
matrimony into which he is entering. It was also held that while considering the
scope of Sections 45 and 51 of the Evidence Act, 1872 that the opinion of an
expert by itself may be relevant but would carry little weight with a Court
unless it is supported by a clear statement of what he noticed and on what he
based his opinion and that the expert should, if he expects his opinion to be
accepted, put before the Court all the materials which induced him to come to
his conclusion so that the Court although not expert, may form its own judgment
on those materials. While dealing with the practice and procedure to be adopted
by Courts in dealing with such a situation, it has been held that in a case
which has been tried on the question whether the petitioner is an idiot or not,
it is not open to a trial Court to make a new case based on the ground that,
although the petitioner was not an idiot, he was a feeble minded man who could
not have entered into a contract. While elaborately considering the purport of
the word 'Idiot', it has been held that being a more imbecile is no sufficient
ground to find one an idiot unless his faculties have not at all been developed
and he has not acquired any appreciable intelligence.

   6. In (R. Lingaraj v. Parvathi), a learned single

   Judge of this Court had an occasion to deal with the concept of lunacy with
reference to a claim based on the provisions contained in the Indian Lunacy Act,
1912. It was held therein that it is incumbent on the Court making an
inquisition under Section 62 of the Act to bestow its consideration on each and
every aspect of the matter before rendering a judicial finding that the person
subjected to inquisition is of unsound mind and needs a guardian for his person
and property. In my view, the said decision may not really be relevant to the
issue, in as much as the scope of the powers of Court under the said Act is not
only different but the Court therein has the power and authority as also
jurisdiction to specifically order inquisition into the mental condition of the
person concerned.

   7. In (1980) 2 Mad LJ 282 (sic) (Lakshmi v. Lalithambal Animal), a learned
single Judge of this Court had an occasion to deal with the issue again under
the Lunacy Act, 1912. It was held therein after considering the case law on the
subject that before aguardian can be appointed under the Act in respect of the
person and property of a lunatic, it should be satisfactorily proved that the
person concerned was of an unsound mind and that he is incapable of managing his
affairs.

   8. In Goutam Kundu v. State of West Bengal, the Apex Court was dealing with a
case arising out under S. 125 of the Code of Criminal Procedure particularly the
issue relating to the determination of the paternity of a child and the
permissibility of blood test to ascertain the paternity. It was held therein
that Courts in India cannot order blood test as a matter of course and that
wherever applications were made for such prayer in order to have a roving
enquiry, the prayer for blood test cannot be entertained. It was also held that
there must be a strong prima facie case for the same and that no one can be
compelled to give sample of blood for analysis. It was also held that it is a
rebuttable presumption of law that a child born during the lawful wedlock is
legitimate and that the presumption can be only displaced from the strong
preponderance evidence and not by a balance of probabilities.

   8A. In C.R.P. No. 3270 of 1994 (T.M.T. Santhi v. P. Subbsamy) 1 had an
occasion to deal with a claim arising under the Hindu Marriage Act, 1955 for
divorce on the ground of one of the spouses said to be suffering from incurably
of unsound mind, by my order dated 24-.3-1995. While setting aside the order of
the trial court, directing the wife to present herself for medical examination.
I have held that the request for the purpose cannot be mechanically allowed as a
matter of course de, hors the consent and the facts and circumstances of the
case.

   9. I have considered the submissions of the learned counsel appearing on
either side carefully in the light of the decisions relied upon before me and
the facts and circumstances of the case. It is seen from the facts and
circumstances of the case that the instance of the respondent, the petitioner
has been once subjected to a medical examination by a psychiatrist. In the
context of the claim made in the petition that the petitioner was a lunatic,
apparently on finding that the report of the expert was not in favour of the
respondent to prove the case that the petitioner was a lunatic, subsequently, an
application has been moved to have the petitioner examined for assessment of
I.Q. (Intelligence Quotient) and that in spite of the objections of the
respondent, the application came to be ordered. A perusal of paragraph 5 (sic
for 6) of the order would go to show that the objections of the petitioner have
not been adverted to seriously and instead, on a casual consideralion, the
application has been mechanically ordered. As noticed supra, Courts have held
that mere imbecility even if it be true is no ground to brand a person as an
idiot. The psychiatrist, who examined the petitioner earlier, could not have
omitted, even on a cursory lest and examination, noticed the existence of a
prima facie case of the claim made or that she had not at all been or developed
mind and not acquired any appreciable intelligence. The I.Q. examination cannot
be said to be either essential or necessary to decide initially even the
existence of a prima facie case before finally deciding the issue as to whether
the petitioner suffers from lunacy which is of an incurable nature. That apart,
I do not find any justification for the second and subsequent order subjecting
the petitioner once over again for in spite of strong protest and dispute raised
questioning the authority of the Court below to compel the petitioner to undergo
medical examination and the test in question and the grievance on behalf of the
petitioner that the move of the respondent is motivated on account of the fact
that the respondent could not get a report to his satisfaction cannot be
completely ruled out as unwarranted. In my view, the Court below has chosen to
exercise powers in an attempt to delve into a roving enquiry in the case on
hand, de hors the statutory provision in respect of which the claim for divorce
has been made and that too by a mechanical exercise of mind without giving due
importance to the objections of the petitioner to undergo the test for the
second time, though of a different nature. The order of the Court below, in my
view, is also not sustainable for the reason that the petitioner cannot be
compelled against her will to subject herself to the examination and nothing
precludes the respondent from testing the petitioner while in the box, if need
be, even with the assistance of an expert to assist the respondent for examining
or cross-examining the petitioner. In view of such course available and in the
absence of even any prima facie case shown before the Court there is no
justification whatsoever to subject the petitioner for the second time to an
examination as ordered by the Court below. Consequently, the order of the Court
below is hereby set aside and the revision shall stand allowed as prayed for,
leaving liberty with the parties as indicated supra. No costs.

   10. Revision allowed.