Disposed

Benny v. Riya

Kerala HC13 Jul 2021OP (FC)/147/2021

Case brief

AI extract

What is this about?

The High Court set aside a Family Court order dismissing an application to refer the respondent to a Medical Board for psychometric analysis in a divorce petition. The Court allowed the petitioner liberty to produce medical records and clarified that the Family Court may still refer the respondent if a prima facie opinion forms after examination.

What did the court decide?

Dismissal of the application to refer the respondent to a Medical Board was set aside with liberty to the petitioner to produce medical records by summoning medical authorities; the matter was remitte

Benny Vs Riya — Matrimonial and Divorce | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943

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OP (FC) NO. 147 OF 2021

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AGAINST THE ORDER/JUDGMENT IN OP 1368/2017 OF FAMILY
COURT,THRISSUR, THRISSUR

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PETITIONER:

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BENNY, AGED 53 YEARS, S/O.POULOSE, RESIDING AT
PULLOCKARAN HOUSE, CHOVVUR VILLAGE, CHOVVUR
P.O., THRISSUR-680 027.

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BY ADV NIHARIKA HEMA RAJ

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RESPONDENT:

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RIYA, AGED 46 YEARS, D/O.SEBASTIAN, RESIDING AT
CHIRAYATH HOUSE, ERAVIMANGALAM P.O.,
MUKUNDAPURAM, MANNUMPETTA, THRISSUR-679 340,
PRESENTLY RESIDING AT CHIRAYATH VEETTIL,
NADATHARA VILLAGE, THRISSUR-680 751.

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BY ADVS.
SRI.V.M.SYAM KUMAR
SMT.P.F.ROSY
SMT.SNEHA RAJIV

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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OP (FC) NO. 147 OF 2021

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..2..

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JUDGMENT

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A.Muhamed Mustaque, J

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This original petition was filed by the petitioner in
O.P No. 1368 of 2017 on the file of the Family Court,
Thrissur. The petitioner filed a petition for divorce
under Sec. 10 of the Divorce Act, 1869. In that he filed
an application to refer the respondent to a Medical Board
for undergoing psychometric analysis by a competent Medical
Board. The divorce is sought on the ground of cruelty on
account of the mental condition of the respondent. This
application has been dismissed stating that there were no
specific pleadings and there is no prima facie case to
refer the respondent to a Medical Board.

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2. We heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.

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3. We perused the pleadings. There are sufficient
pleadings in the petition. The Family Court was not
justified in finding that there were no pleadings. The
pleading are referred in paragraph 8, 15, 19 and 20 in the

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OP (FC) NO. 147 OF 2021

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..3..

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petition. However, that doesn’t mean merely because such
pleadings are set out in the petition that the party
against whom such pleadings are raised should be referred
for Medical Board for psychometric analysis. The Apex
Court in Sharda v. Dharmpal [(2003) 4 SCC 493]upheld the
power of the Court to direct the parties under litigation
to undergo medical examination. The Apex Court cautioned
that it shall not be in violation of the right to personal
liberty of such person. Therefore, it is only when there
is a prima facie opinion formed, the Court need to refer
the parties to undergo medical examination.

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4. The parties are yet to be examined before the
Court. It is submitted by the learned counsel appearing
for the petitioner that the petitioner also may be given
liberty to summon the doctor and the hospital authority
for examining the medical records to show that the
respondent had undergone medical treatment in the past.

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5. Having considered the submissions of both
counsel, we are of the view that nothing would preclude
the Family Court in referring the respondent to a Medical
Board, if the Family Court is of the opinion that after
the examination of respondent that the respondent has to
be referred for a Medical Board for assessment of her

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OP (FC) NO. 147 OF 2021

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..4..

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mental state. The petitioner also should be given liberty
to produce any medical records by summoning hospital
authority or doctor. Therefore, dismissal of the present
application will not preclude the Family Court in
reconsidering the matter afresh in the light of the
observations as above. It is made clear that if the Family
Court is of the prima facie opinion that after the
examination of the respondent as well perusing medical
evidence produced, such examination is required, needless
to say, the Family Court shall refer the respondent to the
Medical Board.

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With liberty as above, without interfering the present
order, the original petition is disposed of.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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OP (FC) NO. 147 OF 2021

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..5..

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APPENDIX OF OP (FC) 147/2021

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PETITIONER ANNEXURE

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EXHIBIT P1 A TRUE COPY OF OP NO.1368/2017 FILED
ON 09.08.2017 PENDING BEFORE THE
HON'BLE FAMILY COURT, THRISSUR.

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EXHIBIT P2 OBJECTION FILED BY THE RESPONDENT IN
OP NO.1368 OF 2017.

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EXHIBIT P3 A TRUE COPY OF THE IA NO.01/2020 IN OP
NO.1368 OF 2017.

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EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENT DATED NIL IN OP NO.1368
OF 2017.
EXHIBIT P5 CERTIFIED COPY OF THE ORDER DATED
24.03.2020 IN IA NO.1/2020 IN OP
NO.1368 OF 2017.

Benny v. Riya

Case brief

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Benny v. Riya

Case brief

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