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K. Jasmine Kirubakani vs K. Balasundaram on 21 April, 1995
Cites 13 docs - [View All]
The Indian Divorce Act, 1869
The Indian Penal Code, 1860
Section 62 in The Indian Divorce Act, 1869
K.A. Loganatha Naicker vs S.R. Balasundaram Mudaliar on 19 April, 1974
Tmt. Santhi And Anr. vs P. Subbusamy on 24 March, 1995

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Chennai High Court
Equivalent citations: AIR 1996 Mad 105, I (1996) DMC 456, (1995) IIMLJ 418

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.