Disposed

Mr.Vivek Anantha Nayak v. Mrs. Varsha Nayak @ Mrs. Savitha Kamath

Karnataka HC9 Aug 2024WP/21697/2024

Case brief

AI extract

What is this about?

In cross-petitions for dissolution of marriage on grounds of cruelty and alleged mental illness, the husband sought to summon the wife's treating psychiatrist after evidence closed. The High Court upheld rejection as to that doctor but permitted a fresh application to examine another doctor with reasons.

What did the court decide?

Writ petition disposed of; trial court's rejection upheld as to the named doctor, but liberty granted to seek examination of any other doctor by fresh reasoned application.

Mr.Vivek Anantha Nayak Vs Mrs. Varsha Nayak @ Mrs… — Matrimonial and Divorce | Karnataka HC (2024)

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1 - NC: 2024:KHC:31990 WP No. 21697 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 21697 OF 2024 (GM-FC)

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BETWEEN:

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MR.VIVEK ANANTHA NAYAK S/O S A NAYAK, AGED ABOUT 50 YEARS, PERMANENT R/AT: "SHREYAS", 15-9-483, NEAR ABHIMAN GARDENS KADRI, MANGALURU - 575 003 NOW R/AT NO.209, BLOCK 2, HARSHA LANDMARK, 11TH MAIN ROAD, BRINDHAVAN LAYOUT, HOYSALA NAGAR, HORAMAVU MAIN ROAD, OFF BANASWADI RING ROAD, BENGALURU - 560043

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Digitally signed by MEGHA MOHAN

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Location: HIGH COURT OF KARNATAKA

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(BY SRI.AJAY PRABHU M., ADVOCATE)

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AND:

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MRS. VARSHA NAYAK @ MRS. SAVITHA KAMATH D/O S RAMACHANDRA KAMATH, AGED ABOUT 47 YEARS, R/AT "USHA NILAYA", ANEGUNDI ROAD, BEJAI, KAPIKAD, MANGALORE - 575 004.

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…PETITIONER

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…RESPONDENT

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(BY SRI.G. RAVISHANKAR SHASTRY, ADVOCATE)

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NC: 2024:KHC:31990 WP No. 21697 of 2024

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER, QUASHING THE IMPUGNED ORDER DATED 26.07.2024 THEREBY REJECTING APPLICATION ON IA NO.IX UNDER ORDER XVI RULE 2 AND 3 OF CPC FILED IN M.C.NO.512/2022 C/W M.C.NO.563/2022 ON THE FILE OF PRINCIPAL JUDGE, FAMILY COURT, D.K., MANGALURU, AS PER ANNEXURE- A AND CONSEQUENTLY ALLOW THE APPLICATION IN IA NO.IX UNDER ORDER XVI RULE 2 AND 3 OF CPC FILED IN M.C.NO.512/2022 C/W M.C.NO.563/2022 ON THE FILE OF PRINCIPAL JUDGE, FAMILY COURT, D.K., MANGALURU, VIDE ANNNESURE H, IN THE INTEREST OF JUSTICE AND EQUITY AND GRANT SUCH OTHER RELIEFS AS THIS COURT DEEMS FIT TO GRANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTERST OF JUSTICE AND EQUITY.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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Aggrieved by the orders passed by the Principal Judge, Family Court, Mangaluru, dated 26.07.2024, on I.A.No.IX in M.C.No.512/2022 c/w. M.C.No.563/2022, the husband is before this Court.

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Parties are referred to as husband and wife for the sake of convenience.

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The husband had filed a petition in M.C.No.512/2022, seeking dissolution of his marriage with respondent dated 29.04.2002, cancel registration of marriage dated 07.05.2002,

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NC: 2024:KHC:31990 WP No. 21697 of 2024

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directing the respondent/wife to execute a registered release deed in respect of the schedule property and other consequential reliefs. According to him, the wife is suffering with mental illness and because of that, he has suffered cruelty. The wife also had filed a separate petition in M.C.No.563/2022, seeking dissolution of marriage, payment of permanent alimony, return of gold ornaments, original documents and other consequential reliefs, on the ground of cruelty. According to her, because of the harassment meted out to her by the husband, she has suffered anxiety and depression. She has even attempted to commit suicide. After the completion of the evidence of RW-1 (wife), the present application, i.e. I.A.No.IX is filed by the husband under Order XVI Rule 2 and 3 of the Code of Civil Procedure, 1908, praying an order to summon Dr.Supriya Hegde Aroor, a practicing Psychiatrist, Bendoor, Mangaluru, to give evidence through Video Conference.

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It is the case of the petitioner/husband that, RW-1/wife has admitted in her evidence that, she was undergoing treatment under the proposed witness - Dr. Supriya Hegde Aroor. It is his case that, in order to prove his

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NC: 2024:KHC:31990 WP No. 21697 of 2024

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contention in respect of the mental sickness of the respondent/wife, the examination of the said Doctor is very much necessary. On behalf of the husband, he himself got examined as PW-1 and marked three documents from Exhibits P-1 to P-3. The respondent/wife also cross-examined her husband. Both of them have filed memos saying that they reserve their right to adduce rebuttal evidence. The memo filed by the wife dated 20.06.2022 came to be rejected by the Trial Court. Then the Court relied on the judgment of this Court in Writ Petition No.102933/2021 (GM-FC) dated 03.12.2021 , wherein this Court, relying on the judgment of the Hon'ble Apex Court, has observed that, the Courts cannot, as a matter of course, summon medical records or direct the Doctors to give evidence about the medical condition of a litigant. However, when the parties to the litigation are under legal disability and in order to safeguard their legal rights, for evaluation of their physical or mental health would be necessary, then the Courts can, in appropriate cases, direct the parties to subject themselves to a medical examination. The exercise of such right is to protect the litigant and not to extract some private information from the litigant which may

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NC: 2024:KHC:31990 WP No. 21697 of 2024

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aid the opposite litigant. Basing on the said judgment, the Court observed that, the wife, as RW-1, has admitted in her cross-examination that, she had once visited the said Dr. Supriya Hegde Aroor and said evidence itself will not entitle the husband to summon the witness to give evidence and further observed that, the husband has alleged that the wife is suffering from unsoundness of mind, however, he has failed to adduce any evidence in this regard. Hence, the question of leading rebuttal evidence regarding the facts pleaded in the petition does not arise, at this stage of the proceedings. Thus, the application filed by the petitioner/husband was held to be not maintainable and accordingly rejected I.A.No.IX filed by the husband.

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Learned counsel for the petitioner/husband has relied on a judgment of the Hon’ble Apex Court in the case of Sharda Vs Dharmpal¹ in Civil Appeal No.5933/2000 decided on 28.03.2003, wherein the Hon’ble Apex Court had dealt with the right of privacy/personal liberty under Article 21 of the Constitution of India. The relevant paragraphs 76, 77 and 78 are extracted as follows:

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1 AIR 2003 SC 3450

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NC: 2024:KHC:31990 WP No. 21697 of 2024

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"76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these

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competing interests by balancing the interests involved.

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77. If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected

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78. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory-jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and/or Article 227 of the Constitute of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order."

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Relying on the aforesaid judgment, the learned counsel appearing for the petitioner/husband submits that the Court ought to have allowed the application filed by the husband.

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8 - NC: 2024:KHC:31990 WP No. 21697 of 2024

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Learned counsel for the respondent/wife submits that by way of rebuttal evidence, the husband is trying to fill-up the lacuna or latches in his evidence and at this stage, it is not permissible. According to the learned counsel, already in respect of the memo that is filed by the husband seeking rebuttal evidence, the Court has rejected it, observing that the parties cannot be permitted to lead the rebuttal evidence. Further, he submits that there are certain admissions made by the husband in the cross-examination and by this application, those admissions cannot be taken away, and particularly, this particular Doctor who has treated the wife and examined her, as held by the Court, it is nothing but extracting the confidential information shared between a Doctor and a patient. It is submitted that, at this stage, the rebuttal evidence is not permissible. He has read the cross-examination of the petitioner/husband wherein he has admitted certain facts which are relevant and in order to over-come that, he is trying to examine the Doctor and that particular Doctor cannot be examined. It is further submitted that, earlier, when the wife wanted to appoint her sister as the next friend and guardian, at that time, while doing the exercise, the Court had called for one

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9 - NC: 2024:KHC:31990 WP No. 21697 of 2024

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Dr.Ravish Thunga and the Court had also interacted with the said Doctor and referred the respondent/wife for medical examination and to submit his report and after going through the report submitted by the Doctor, it found that the respondent/wife did not require her sister as the next friend and guardian to defend her case and that she was in good state of mind and can take care of herself, as such, the application filed by the wife was dismissed. He submits that even that evidence is also on record and the Court had rightly dismissed the application.

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Having heard the learned counsel on either side, perused the material on record.

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In this case, both the parties are seeking dissolution of their marriage on the ground of cruelty against each other. According to the husband, the wife is suffering from mental illness and on that cruelty, he is seeking dissolution of marriage and according to the wife, because of the harassment meted out to her by her husband, she has suffered cruelty and also she has suffered anxiety and depression. The state of mind of the wife which led to this stage, whatever was the respective

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NC: 2024:KHC:31990 WP No. 21697 of 2024

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contentions taken by both the parties, it will be useful for the wife if a Doctor is examined. According to the learned counsel for the respondent/wife, that particular Doctor is the one who had treated her. As rightly pointed out by him, the Doctor whom the petitioner/husband wants to examine cannot be examined at a stage when the examination and crossexamination of the witnesses is fully completed. According to the husband, the wife had stated that she had taken treatment from the said Doctor and that is why he wants to examine the said Doctor. Further, according to the respondent/wife, now, by way of a rebuttal evidence, the husband wants to take away the admissions that he has made. If at all, he wanted to examine the said Doctor, he should have filed an application earlier. At all times, basing on the technicalities, the Court cannot refuse the relief. When a particular application that is filed or a particular relief that is sought is very much essential for deciding the case, the Court can always allow the same. Now, both the parties have led in their evidence and for the purpose of deciding the case, if the evidence of the Doctor is essential, then even at a later stage also, the same can be entertained.

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NC: 2024:KHC:31990 WP No. 21697 of 2024

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In the instant case, as the application filed is with regard to a Doctor who has treated the respondent /wife, as far as that is concerned, this Court is of the opinion that, the Trial Court was right in dismissing the said application. If the petitioner/husband wants to examine any other Doctor, he can come up with an appropriate application before the Court, clearly specifying the reasons, why such an application was not made earlier, why he has come up with that application and whereby the respondent/wife would also get an opportunity to file her objections and basing on that, the Trial Court shall decide the same within a period of fifteen days from the date of the said application.

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Accordingly, the writ petition stands disposed off .

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All I.As. in the writ petition, stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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BMV*

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List No.: 1 Sl No.: 12

Mr.Vivek Anantha Nayak v. Mrs. Varsha Nayak @ Mrs. Savitha Kamath

Case brief

What is this about?

What did the court decide?

Mr.Vivek Anantha Nayak v. Mrs. Varsha Nayak @ Mrs. Savitha Kamath

Case brief

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