TaxTMI 
TaxTMI 
2021 (12) TMI 1431
X X X X Extracts X X X X
X X X X Extracts X X X X
....perpetrated by the respondent and her family members as they chose not to disclose a vital and crucial fact regarding the respondent‟s mental health/ailment. 4. According to the appellant, the respondent was, before the marriage, and during the days that she stayed with the appellant, suffering from Acute Schizophrenia. The respondent behaved in a very unusual manner after her marriage in the matrimonial home, as well as during their honeymoon. 5. Consequently, the appellant took the respondent to Dr. Inderjeet Sharma in January, 2006, who after examining her referred her to GB Pant hospital, where Dr. Rajiv Mehta examined the respondent and prescribed certain medicines. Finding no change in respondent‟s behaviour, the appellant took her to a neuro surgeon at Institute of Human Behaviour and Allied Sciences, Delhi where the respondent was examined again and Dr. Harcharan Singh prescribed her medicines. 6. On 11.02.2006, the appellant took the respondent to Hindu Rao Hospital at Delhi, where Dr. Jitender Kumar examined the respondent. As per the appellant, after meeting the said doctor respondent shouted"isi doctor ne mujhe pehle bhi davai di hai." 7. Since t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d a petition under Section 9 of the Hindu Marriage Act, seeking Restitution of Conjugal Rights against the appellant which, vide order dated 30.10.2009 of the Family Court, had been clubbed with the divorce petition. 14. In order to prove his case before the family court, the appellant examined himself as PW-1, and has exhibited medical slip dated 17.01.2006 (exhibit PW-1/B), Out Patient Cards dated 03.02.2006, 11.02.2006 and 07.02.2006 as exhibit PW-1/C, PW-1/D and PW-1/E respectively, and copy of police complaint dated 22.02.2006 as exihibit PW-1/G. Petitioner examined his father Sh. Bal Kishan Aggarwal as PW-2, Smt. Manju Aggarwal, his mother as PW-3, and Sh. Bharat Aggarwal, his brother as PW-4, who reiterated the averments made in the petition. The appellant also examined PW-5 Dr. Rajiv Mehta, PW-6 Dr. Inderjeet Sharma, PW-7 Dr. Mamta Sood and PW-8 Dr. Jitender Kumar. All PWs were extensively cross examined by learned Counsel for the respondent. 15. The respondent, on the other hand, examined herself as RW-1 and exhibited the Film and Report of CT Scan as exhibit RW-1/A, driving licence as exhibit RW-1/B, public notice dated 22.07.2006 in Times of India newspaper as exhi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....W-1/E, PW-7 deposed that Ex. PW-1/E does not bear her hand writing anywhere. As regards PW-6 Dr. Indrajeet Sharma, he deposed that the medicines prescribed by him could be given for various purposes, including anxiety and did not know the patient personally, and the medical prescription did not bear the personal identification of the Respondent on the prescription. The testimony of PW-5 Dr. Rajiv Mehta was not relied upon by the Family Court, because no separate test was conducted for diagnosing the respondent provisionally. f) What weighed with the Family Court while passing the impugned order, dismissing the petition, was also that during the span of less than one month, the appellant had taken respondent to 5 different doctors of different hospitals. The Family Court also came to the conclusion that the appellant did not wait to see the result of the treatment given by various doctors to the respondent as per prescription, and had taken respondent to one hospital after another for preparation of prescription and no medicine was given to the respondent. The Family Court was of the view that "it appears that the petitioner was only getting prepared these medical prescript....
X X X X Extracts X X X X
X X X X Extracts X X X X
....viour opined that the Respondent is suffering from Hebephrenia, and prescribed some medicines for the same. 21. The Appellant has relied on medical literature and provided a table, classifying the uses of the medicines. Following is the table - Brand name ChemicalSalt/Composition Treatment Of (i) Arip MT 15 Aripiprazole Schizophrenia (ii) Sizodon Plus Risperidone Schizophrenia (iii) Parkin Plus Trifluoperazine + Trihexyphenidyl Schizophrenia and Parkinson (iv) Risdone Risperidone Schizophrenia (v) Bexol Trihexyphenidyl Parkinson (vi) Respid Risperidone Schizophrenia (vii) Pacitane Trihexyphenidyl Parkinson 22. Learned counsel, by relying on medical literature, has shown that Risperidone, Trifluoperazine, and Aripiprazole are Antipsychotic Drugs. The Chapter on "Drugs Used in Mental Illness: Antipsychotic and Antimanic Drugs" in the medical text states that „Antipsychotic (neuroleptic, ataractic, major tranquillizer) useful in all types of functional psychosis, especially schizophrenia.‟ K.D. Tripathi, Essentials of Medical Pharmacology (6th Edition, 2008) J....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ard learned Counsel for the parties and have gone through the documents. 30. At the outset, we may state that Judges are not medical professionals or experts, and acquire limited knowledge based on the arguments of the parties, and the medical literature produced before them; the testimonies of expert witnesses produced in Court, and; the submissions advanced before the Court. The Courts, to be able to decide such issues, needs expert opinion from credible persons in the field. The parties are also entitled to grant of opportunity to either support, or challenge the opinion that the experts may give after examination of the person concerned, and all other relevant materials. However, what weighs with us, at the outset is the denial of the respondent to subject herself to evaluation of her condition by an independent Medical Board to be appointed by the Court. This conduct itself raises a presumption against the respondent. The judgment of Dharampal (Supra) is clear and unequivocal in this regard. The relevant extract from Dharampal (Supra) read as under: "9 .Clause 2(b) of Section 5 provides for one of the conditions for a valid Hindu marriage that neither party must be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit. 35. In certain cases medical examination by the experts in the field may not only found to be leading to truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. 36. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. 37. In matrimonial disputes, the court has also a conciliatory role to play- even for the said purpose if may require expert advice. 38. Under Section 75(e) of Code of Civil Procedure and Order 26 Rule 10A the Civil Court has the requisite power to issue a direction to hold a scientific, technical or expert investigation. 45. It was held that nobody can be forced to go to a mental hospital to undergo a medical treatment and it would be for the Court to draw an adverse inference against him for not doing so. 51.....The prime concern of the Court is to find out as to whether a person who is said to be mentally il....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him." (emphasis supplied) 31. The outright refusal of the respondent to undergo any medical examination, prevents the court arriving at the truth. It has been held by the Supreme Court in Kollam Chandra Sekhar v. Kollam Padma Latha (2014) 1 SCC 225. by relying on the testimony of a doctor that Schizophrenia "is a treatable, manageable disease, which can be put on a par with hypertension and diabetes." However, the same requires determination by a doctor, and in Dharam Pal (Supra) the court has observed that ".....but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified Psychiatrist." Therefore, in such circumstance determination of truth is an important step for us to enable making of a fair decision. 32. In Kollam Chandra Sekhar (Supra), the Supreme Court has aptly described the institution of marria....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... documents exhibited by them seems to suggest that Respondent was suffering from schizophrenia. In the cross-examination, the doctor opined that the provisional diagnosis of the patient was on the basis of history and the interview of the patient. PW-5 further deposed in his prescription that the patient was suffering from F- 20. 35. Further, generally, tests are not conducted for Schizophrenia. Pertinently, the respondent herself admitted that even in her college days she used to have headache and the said headaches were of such severity, that they interfered with her education, as a result of which, the respondent could not complete her college. There is no explanation or reason, as to what was the nature of those headaches; what caused those headaches; and; what was the treatment given to the respondent for those headaches. 36. A combined reading of the evidence as well as the admission of the respondent, even though, may not conclusively prove that the respondent was suffering from Schizophrenia/Hebephrenia- F-20 prior to her marriage, at the time of her marriage, and; subsequent to her marriage, but definitely raises a serious doubt about the mental health of the respond....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him." 41. Thus, the Family Court fell in error in rejecting the appellant‟s application. The approach of the Family Court - that the appellant had to fend for himself, and he could not seek a direction from the Court for medical examination of the respondent was erroneous. It is not that this direction was sought by the appellant without any foundation or basis. The appellant had raised a plea that the respondent was suffering from Schizophrenia from day one. The appellant had shown the respondent to several specialists, and the medications prescribed show that they were relevant for treatment of Schizophrenia. The appellant also produced the medical doctors/ specialists and exhibited their prescriptions. The parties lived together for hardly any period, as the respondent was taken away by her father after about nine weeks of marriage from the matrimonial home. The evidence with regard to the respo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... such a spouse-who claims to be not suffering from any mental ailment who has preferred a petition to seek restitution of conjugal rights, and expresses her desire to live with the appellant husband, not undergo such medical examination? 46. The only course that commends itself, in the facts of the case, is to call the opinion of an expert Medical Board. While the burden of proof is on the party alleging a claim, the conduct and cooperation of the other party is something to be taken a note of. The outright refusal by learned counsel of the Respondent to subject the Respondent to such medical examination, leaves the situation at a stalemate and prevents us from arriving at the definite truth. The Respondent has scuttled the effort of the court to arrive at a definite finding of truth. The only way of conclusively determining the mental health of the Respondent is by subjecting the Respondent to an examination by an expert Medical Board. The appellant has significantly discharged the onus by leading cogent evidence, and raise a preponderance of probability, that the Respondent is suffering from Schizophrenia. 47. For the abovesaid reasons, we draw an adverse inference against ....