Decided on March 22,1963



M. R. MODY - (1.) This is one of those unfortunate matters in which a relentless and obdurate attitude has been adopted by the relations or friends advising the petitioner with a view to reducing the opponent-wife to an apparently helpless situation. The petitioner before me is the husband of the opponent. The marriage of the parties took place at Ahmedabad as far back as on December 6 1945 After this marriage the petitioner and the opponent lived and cohabited together as husband and wife. It is the opponents allegation that after her marriage the petitioner at times sometimes behaved like an insane person. The conduct of the petitioner from which the opponent came to such a conclusion was from instances of his breaking window-panes of his attempt to break doors quarrels etc. According to her his sense of discrimination between good and evil right and wrong became less and less as time went on and ultimately vanished. In 1949 she went for her delivery to Bombay to her fathers place and at that time she was informed that the petitioner had run away and was not to be found. Subsequently after he was found his name and address had to be tattooed on his hand so that if he again went away he would be restored to the house She also alleges that he was treated by one Dr. Vahiya a psychiatrist at Bombay who gave him electric shocks as and by way of treatment for his malady. Her allegation is that for the last 11 years the petitioner has been insane and this insanity has been increasing from day to day. On this allegation the opponent filed a petition for dissolution of marriage under sec. 13(1)(iii) of the Hindu Marriage Act on the ground that the petitioner was incurable of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. A written statement was filed by the husband the petitioner in this petition before me. This written statement is verified not by the petitioner himself but by the mother of the petitioner. The allegation that he behaved in an insane manner was denied and it was also denied that he had run away. It was however admitted that the petitioner was treated in Bombay by Dr. Vahiya. It is stated that Dr. Vahiyas treatment was given to him because his mental health was not good. It is further stated that this treatment did him good for some time but that on account of shortage of time in the then circumstances this treatment could not be fully taken and he had to be brought back to Ahmedabad. A complaint is made that the opponent never looked after the petitioner during his medical treatment and inspite of messages that the condition of the petitioner may become very delicate if she continued to neglect him the opponent had not turned to him. It is also denied that the madness is incurable. This petition was originally filed in the Court of the learned Civil Judge Senior Division at Ahmedabad and was numbered Hindu Marriage Miscellaneous Petition No. 68 of 1960. On the establishment of the City Civil Court at Ahmedabad this petition was transferred to that Court and was numbered 721 of 1961.
(2.) On April 25 1962 the opponent wife filed an application to the trial Court for an order for compulsory medical examination of the petitioner. It is stated in this application that to establish the incurable insanity of the petitioner as required by law it was necessary to have a medical examination of the petitioner. The main questions on which the opponent desired medical opinion were:- (a) Having regard to the symptoms and the condition of the petitioner and from his other examination for how many years could the petitioner have been of unsound mind and (b) whether such unsoundness of mind is incurable ? It was submitted that this was very necessary for proof of the opponents case alleged in her petition for divorce. This application came up before the learned trial Judge for disposal. The learned trial Judge held that it was necessary for the opponent to prove insanity as required by law but for that proof it was necessary to know whether the petitioner was a man of unsound mind and if so what was the nature of the insanity This could only be done by examination of the person of the petitioner by a doctor. In his opinion it would not be possible for the Court to determine the nature of the mind of the respondent by putting some questions to him and therefore medical opinion was absolutely necessary. He accordingly held that the Court had inherent jurisdiction even in absence of a specific provision in the Civil Procedure Code to direct a medical examination of the petitioner by a doctor. He ordered that the petitioner be subjected to examination by the Civil Surgeon or a doctor named by him to determine the unsoundness of mind of the said Bipinchandra (i. e the petitioner) and whether this unsoundness of mind of the petitioners was curable or not.
(3.) It was not desired by those who were the friends and relations of the petitioner to submit the petitioner to medical examination for ascertainment of the facts as ordered by the learned Judge. This revisional application was thereupon filed on behalf of the petitioner to this Court for setting aside the order for medical inspection passed by the learned Judge At the hearing of this petition Mr. Shah the learned advocate appearing on behalf of the petitioner contended that the learned Judge had no jurisdiction to pass an order to compel medical examination of the petitioner He submitted that there was no provision either in the Hindu Marriage Act or under the Code of Civil Procedure ( which is made applicable to petitions filed under the Hindu Marriage Act by sec. 21 thereof ) under which it would be open to the Court to compel a party to be medically examined for whatever purpose.;

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