Dismissed

Roy Thomas, v. Lekha Roy

Kerala HC16 Mar 2021OP (FC)/86/2020

Case brief

AI extract

What is this about?

The High Court disposed of a petition challenging the dismissal of two interlocutory applications to refer a respondent-wife for mental assessment. The Court quashed the impugned orders and reiterated that a reference for mental evaluation is a serious inquiry into personal liberty requiring strong prima facie evidence of illness, not merely bald allegations.

What did the court decide?

Pertinently, the High Court dismissed the original petition challenging the lower court's decision to decline the request for medical assessment.

Roy Thomas, Vs Lekha Roy — 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 MR.JUSTICE DR. KAUSER EDAPPAGATH

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TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

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OP (FC).No.86 OF 2020

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AGAINST THE ORDER/JUDGMENT IN OP 210/2017 DATED 01-012020 OF FAMILY COURT, PATHANAMTHITTA

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PETITIONER:

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ROY THOMAS, AGED 48 YEARS, S/O. THOMASKUTTY, R.R. KOTTAGE, PATTAZHI VILLAGE, PANTHAPLAVU P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT.

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BY ADVS. SRI.N.L.BITTO SRI.JOE J URUVATH

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RESPONDENT:

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LEKHA ROY, AGED 36 YEARS, W/O. ROY THOMAS, RESIDING AT CHERUVATTOLIL PADINJARETHIL (MANORAMA) HOUSE, KOZHANCHERY P.O., MALLAPPUZHASSERY VILLAGE, KOZHANCHERY PANCHAYATH, KOZHANCHERY TALUK, PATHANAMTHITTA DISTRICT-689641.

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R1 BY ADV. SRI.V.SETHUNATH R1 BY ADV. SRI.V.R.MANORANJAN (MUVATTUPUZHA) R1 BY ADV. JESLIN DOLLY MATHEWS

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 16-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (FC).No.86 OF 2020

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..2..

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JUDGMENT

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Dated this the 16th day of March 2021

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A.Muhamed Mustaque, J

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This original petition was filed challenging the orders in two separate interlocutory applications filed in O.P (Div) No.210 of 2017, which is pending before the Family Court, Pathanamthitta. The petitioner is the applicant in the interlocutory applications. The petitioner filed I.A No.1058 of 2017 to refer the respondent – wife to the Medical Board to substantiate his contention that she is mentally unsound. The petitioner also filed I.A. No. 638 of 2018 to appoint a next friend for the respondent. Both the applications have been dismissed. Challenging this, the original petition has been filed.

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In fact, the petitioner has approached this Court earlier, challenging the orders of the Family Court dismissing the same petitions in O.P (FC)No.536 of 2018. This Court set aside those

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OP (FC).No.86 OF 2020

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orders and directed the Family Court to reconsider the matter afresh. Accordingly, the present orders have been passed.

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In the present order, the Family Court, after interacting with the respondent, found that she is mentally sound and she gave rational answers to the questions asked by the Court. The Court also took note of the proceedings in the maintenance case instituted by her, where she was examined as PW1. The Court was of the firm opinion that she is mentally sound. Accordingly, both the applications were dismissed.

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In cases where the party may be a mentally sound person, the Court can very well dismiss the application for appointment of guardian. However, in cases where the party suffers from mental illness, which may warrant divorce, the Court can very well refer the parties to the Medical Board. However, the Court cannot merely refer the parties based on the petition filed by one of the parties

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OP (FC).No.86 OF 2020

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making such a request. The Court has to form a strong prima facie evidence as to the suffering of such illness by such person, who is to be referred to the Medical Board.

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In this matter, we perused the affidavit filed by the petitioner. Except the general bald allegations set out in the petition, there is absolutely no description as to the kind of illness suffered by the respondent. Merely because such allegations have been raised in a petition or in an application has been filed for referring such person to a Medical Board, the Court need not accept such allegations, to refer the parties to the Medical Board. The reference of the parties for assessment by a Medical Board also involves serious questions related to the personal liberty. The Court, therefore, has to be cautious enough while ordering a reference to a Medical Board for mental assessment of such persons. In the absence of any prima facie proof being placed before the Family Court to show that the wife is mentally unsound, we are also of

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OP (FC).No.86 OF 2020

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the view that the Family Court is justified in declining such request of the petitioner. The learned counsel for the petitioner submits that in Ext.P7 order it is recorded by the Family Court that the respondent was passive and slow. That observation itself would not prove a strong prima facie case to refer the respondent to the Medical Board. We therefore, dismiss the original petition. No costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

DR. KAUSER EDAPPAGATH

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JUDGE

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OP (FC).No.86 OF 2020

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..6..

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION IN OP 210/2017 PENDING BEFORE THE FAMILY COURT, PATHANMTHITTA DATED 16/07/2015.

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EXHIBIT P2 A TRUE COPY OF THE GOP 483/2015 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, PATHANAMTHITTA.

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EXHIBIT P3 A TRUE COPY OF THE IA 1058/2018 IN OP 210/2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 20/06/2018.

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EXHIBIT P4 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA 1058/201 IN OP 210/2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA.

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EXHIBIT P5 A TRUE COPY OF THE IA 638/2018 IN OP 210/2017 BEFORE THE FAMILY COUR, PATHANAMTHITTA DATED 10/05/2018.

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EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA 638/2018 IN OP 210/2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 07/07/2018.

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EXHIBIT P7 A TRUE COPY ORDER IA 1058/2017 IN OP 210/2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 26/07/2018.

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EXHIBIT P8 A TRUE COPY OF ORDER IA 638/2018 IN OP 210/2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 26/07/2018.

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..7..

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OP (FC).No.86 OF 2020

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EXHIBIT P9	A TRUE COPY OF	THE ORDER IN OP (FC)
	536/2018 OF THE	HON'BLE HIGH COURT OF
	KERALA DATED 27	/02/2019.

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EXHIBIT P10	A TRUE COPY OF IA 1058/2017 IN OP
	210/2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 01/01/2020.
EXHIBIT P11	A TRUE COPY OF IA 638/2018 IN OP
	210/2017 BEFORE THE FAMILY COURT,
	PATHANAMTHITTA DATED 26/07/2018.

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RESPONDENTS EXHIBITS:

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EXHIBIT R1(A) THE TRUE COPY OF THE ODER OF THIS COURT IN R.P.NO.322 OF 2019 IN OP(FC) N.536/2018. EXHIBIT R1(B) THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HUSBAND IN M.C.NO.124/2015 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA. EXHIBIT R1(C) THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER/HUSBAND IN O.P. NO.489/2015 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA.

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EXHIBIT R1(D) THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER/HUSBAND IN O.P.(GW) 483/2015 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA.

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EXHIBIT R1(E) TRUE COPY OF THE ORDER IN M.C.NO.124/2015 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA.

Roy Thomas, v. Lekha Roy

Case brief

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Roy Thomas, v. Lekha Roy

Case brief

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