Ashish Kumar Agrawal v. Smt. Annapurna Agrawal

AFR HIGH COURT OF CHHATTISGARH, BILASPUR W.P(227) No. 690 of 2015 Ashish Kumar Agrawal, S/o Rajkumar Agrawal, aged about 29 years, R/o turi Hatri, Purani Basti, Raipur, Tahsil and District Raipur (C.G.) ---- Petitioner

Versus

Smt. Annapurna Agrawal W/o Shri Ashish Kumar Agrawal, aged about 27 years, D/o Shri Subhash Agrawal, R/o In front of City Kotwali, Civil Line, Balodabazar, Bhatapara, Present Address - Block No. 'O' 234, Second Floor, Phase-II, RDA Colony, Boriakhurd, Raipur (C.G.) ---- Respondent For Petitioner :

Mr. Ankur Agrawal, Advocate.

For Respondent :

None, though served.

Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 13/11/18 1.

Taking exception to the impugned order dated 29.07.2015 (Annexure- P-1) whereby the petitioner's application for medical examination of his wife/respondent herein has been declined by the Family Court, Raipur, this writ petition has been filed by the petitioner/plaintiff.

2.

Mr. Ankur Agrawal, learned counsel appearing for petitioner submits that the impugned order is unsustainable and bad in law in view of the decision rendered by the Supreme court in the case of Lalit Kishore v. Meeru Sharma and Another 1 .

(2009) 9 SCC 433

3.

None appears for the respondent, though served. 4.

I have heard learned counsel for the petitioner and perused the impugned order with utmost circumspection.

5.

In a petition filed by the petitioner under Section 12 of the Hindu Marriage Act, 1955 before the Family Court, Raipur for declaring his marriage to be void, the petitioner preferred an application under Order 26 Rule 10(A) read with Section 151 of CPC for medical examination of respondent/wife which has been rejected by the impugned order on the ground that Court has no power to compel the other side to undergo medical examination in light of the decision of the Madras High Court in the case of Venkatachalapathy v. Saroja alias Thangammal 2 .

5.

The question so based for consideration is no longer res-integra. The Supreme Court in the case of Sharda v. Dharmpal 3 has allowed medical examination of a party in a matrimonial proceeding and held in para-34 as under :- "34. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms."

6.

Likewise, in the matter of Lalit Kumar (supra), the Supreme Court AIR 1981 Mad 349 (2003) 4 SCC 493

has considered the question following Sharda (supra) and held in paras- 3,4,6 and 7 as under :- "3. It is true that the Hindu Marriage Act, 1955 or any other law governing the field does not contain any express provision empowering the court to issue direction upon a party in a matrimonial proceeding to compel him to submit herself/himself to a medical examination. But, in our view, it does not preclude the court from passing such an order. The court is always empowered to satisfy itself as to whether a party before it suffers from mental illness or not, either for the purpose of taking evidence on the ground for which the matrimonial proceeding was started.

4. It is well settled that the primary duty of the court is to see that the truth comes out. Therefore, although the medical examination of a party is not provided in the Act, even then, the court has complete inherent power in an appropriate case under Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.

6. In view of the aforesaid decision of this Court in Sharda (supra) and considering the fact that the report of the medical expert would only be an evidence in the proceeding, we do not find any reason why such an application for appointment of a medical expert to examine the respondent wife cannot be granted.

7. For the reasons aforesaid, the impugned order as well as the order of the Family Court are set aside. The

application for appointment of a medical expert for medical examination of the respondent wife filed at the instance of the appellant husband is thus allowed. The appeal is thus allowed. There will be no order as to costs."

7.

In light of the principles of law laid down by the Supreme Court in above stated judgments, it is quite evident that the Family Court has power and jurisdiction to direct for medical examination of a party for ascertaining medical condition of that party under the provisions of the Hindu Marriage Act, 1955 in matrimonial proceeding. As such, the Family Court is absolutely unjustified in rejecting the application on the ground of having no jurisdiction relying upon the judgment of Madras High Court in the matter of Venkatachalapathy (supra). 8.

Accordingly, the impugned order is set aside and the matter is remitted to the Family Court, Raipur for hearing the application afresh and to pass an order on its merit after hearing the parties in accordance with law.

9.

A copy of this order be sent to the Family Court, Raipur through e-mail and Fax for needful and compliance.

SD/- (Sanjay K. Agrawal) Judge Priyanka