Gujarat High Court
Prapti Apurva Dave D/O Mahendrabhai ... vs Apurva Jagdishchandra Dave on 9 December, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20552 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
==========================================================
PRAPTI APURVA DAVE D/O MAHENDRABHAI GANDHI
Versus
APURVA JAGDISHCHANDRA DAVE
==========================================================
Appearance:
MR JAYANT P BHATT(169) for the Respondent(s) No. 1
MR JEET J BHATT(6154) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 09/12/2022
ORAL JUDGMENT
1. Heard the Party-in-Person Ms. Prapti Apurva Dave and learned Advocate Mr. Jayant P. Bhatt on behalf of the respondent. Page 1 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022
C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022
2. Issue Rule returnable forthwith. Learned Advocate Mr. Bhatt waives service of rule on behalf of the respondent.
3. By way of this application, the Party-in-Person seeks to challenge an order passed by the learned Principal Judge, Family Court, Gandhinagar dated 03.09.2022 below Exhibit 177 in Family Suit No. 166 of 2013 whereby the learned Family Court had rejected the application preferred by the Party-in-Person-wife before the Family Court to appoint a medical expert for psychological evaluation of the respondent-original applicant before the Family Court.
4. It is the submission of the Party-in-Person that during the course of examination of two witnesses i.e. one Dr. B. C. Patel and Dr. A. A. Kureshi, who had treated the applicant before the learned Family Court- respondent herein, on two separate occasions, i.e. Dr. B. C. Patel having examined the respondent-husband in connection with a criminal case lodged against husband under the provisions of the Gujarat Prohibition Act and more particularly, in case of Dr. A. A. Kureshi who had treated the respondent-husband in a Medico-legal case where the respondent-husband had inflicted injuries on his self by cutting both his wrists, that the petitioner-wife, had come to Page 2 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 know about the possibility of respondent-husband suffering from Obsessive Compulsive Disorder (OCD) for which the husband had been taking Psychiatric treatment.
4.1. The Party-in-Person would submit that since the said aspect came to the knowledge of the Party-in-Person, applicant-wife herein, during course of the cross examination of the above witnesses, that the applicant-wife had given such an application much after the issues were framed and whereas, it is on account of such fact not being known to the applicant-wife that even in her written statement before the learned Family Court that the applicant had not raised any such contention. The Party-in- person would submit that since such an aspect had come to the notice of the Party-in-Person during course of the proceeding, the Party-in-Person had immediately preferred an application invoking the aid of Section 12 of the Family Courts Act, requesting the Court to take assistance of experts for evaluating the psychological condition of the respondent-husband. The Party-in-Person would submit that since as such there had been no delay on part of the present Party-in-Person and though the case before the learned Family Court had reached at an Page 3 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 advanced stage, yet, neither the aspect of delay nor the aspect of advanced stage, should have disadvantaged the Party-in-Person from seeking such a relief and whereas, according to the Party- in-Person the learned Family Court had committed an error in rejecting the said application.
4.2. The Party-in-Person would further draw the attention of this Court to provisions of Section 12 and 14 of the Family Courts Act to submit that it is always open for the Court to engage services of Medical experts and whereas, according to Section 14, strict Rules under the Indian Evidence Act may not be applicable to procedure which may be adopted by the learned Family Court. Having regard to such submissions, the Party-in- Person would request this Court to set aside the order passed by the learned Family Court and further direct the learned Family Court to call for assistance of medical experts to evaluate the psychological condition of the respondent-husband. 4.3. The Party-in-Person relies upon decision of the Hon'ble Apex Court in case of Sharda Vs. Dharmpal reported in 2003 4 (SCC) page 493 in support of her submissions.
Page 4 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022
C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022
5. This application is vehemently objected to by the learned Advocate Mr. Bhatt on behalf of the respondent-husband. Learned Advocate Mr. Bhatt would submit that the present application is one more attempt by the applicant-wife to protract the legal proceedings. Learned Advocate Mr. Bhatt would submit that the Family Suit itself had been filed in the year 2013, more particularly, whereby the respondent-husband had sought for divorce and whereas, according to learned Advocate Mr. Bhatt on account of repeated applications being moved by the applicant-wife herein, the Family Suit, has not concluded even after almost 9 years from the date of filing.
5.1. Insofar as the merits are concerned, learned Advocate Mr. Bhatt would submit that as such the Party-in-Person applicant- wife had not raised any such plea with regard to any psychological disorder suffered by the husband in her written statement. Learned Advocate Mr. Bhatt would further submit that even no issues as regards the psychological disorder part of the husband has been framed by the learned Family Court. Learned Advocate Mr. Bhatt would submit that under such circumstances, there is no point in calling for a medical expert Page 5 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 for the psychological evaluation of the respondent-husband. Learned Advocate Mr. Bhatt would further submit that the present being an application under Article 227 of the Constitution of India, as per the law laid down by the Hon'ble Apex Court, such jurisdiction has to be exercised sparingly and only in exceptional cases and whereas, according to learned Advocate Mr. Bhatt, the present not being an exceptional case and whereas, appropriate reasons having been stated by the learned Family Court in rejecting the application preferred by the present applicant, according to learned Advocate no interference is called for by this Court.
6. In rejoinder the Party-in-Person would submit that the trial is not delayed at the instance of the Party-in-Person and whereas it is submitted that the trial had not concluded on account of applications moved by the respondent himself. The Party-in- Person would further submit that the learned Family Court while framing the issues, has framed issue no. 2 which is whether the respondent-wife proves that she is treated with cruelty by the petitioner husband. Issue no. 6 according to the Party-in-Person is with regard to an aspect of who has deserted whom from the Page 6 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 parties to the marriage. The Party-in-Person would submit that for coming to a just conclusion with regard to both the issues as aforementioned, the aspect of psychological evaluation of the respondent-husband, would be necessary. The Party-in-Person would therefore, submit that having regard to the nature of the issue, in case, the psychological evaluation reveals mental disorder of the husband, then it would be in the interest of the Party-in- Person who is contesting the application for divorce preferred by the respondent-husband. The Party-in-Person would submit that under such circumstances, the learned Family Court had gravely erred in rejecting the application preferred by the present applicant and therefore, request this Court to interfere and set aside the impugned order.
7. This Court has heard the Party-in-Person as well as the learned Advocate Mr. Bhatt for the respondent who have not submitted anything further.
8. This Court has also perused the record including the impugned order as well as the examination in chief and cross examination of the doctors concerned, more particularly, the same being relied upon by the Party-in-Person. Before evaluating the facts, this Court Page 7 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 deems it appropriate to refer to Section 12 of the Family Courts Act, 1984. Section 12, is reproduced herein below for benefit. Section 12: " Assistance of medical and welfare experts.- In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act.
9. A perusal of Section 12 reveals that the Family Court is empowered to secure the services of a medical expert or such person including a professional for the purpose of assisting the Family Court in discharging the functions imposed by the Act. The present issue arises from an application moved by the applicant- wife who wants a psychological assessment of the respondent- husband and whereas, considering the scope and ambit of Section 12 of the Family Courts Act, there is no doubt with regard to the power available to Family Court to secure the services of a medical expert.
Page 8 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022
C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022
10. Having observed as above, insofar as the facts are concerned, it appears that while the Party-in-Person is relying upon the examination in chief and cross examination of two doctors namely Dr. B. C. Patel and Dr. A. A. Kureshi and whereas, upon perusing the examination in chief and cross examination of both the said doctors, in the considered opinion of this Court, as regards the issue raised in the present application, the testimony of the doctor B. C. Patel would not advance the cause of the Party-in- Person at all, more particularly the said doctor not having opined or stated anything with regard to any psychological disorder suffered by the respondent husband. On the other hand, insofar as the testimony of Dr. A. A. Kureshi, it appears that the said doctor was a medical officer at the Community Health Centre, Santalpur during the period between 2006-2018 and whereas, in the month of August, 2012, the respondent-husband had gone for treatment to the C.H.C., more particularly, on account of self-inflicted injury whereby the husband had inflicted injuries on his arms by using a shaving blade. The said doctor at the relevant point of time, in his examination of the husband, had inter alia observed in his initial assessment of the patient (Exh.170) more particularly in the column of past history that the husband is undergoing psychiatric Page 9 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 treatment for last 5 to 6 years for Obsessive Compulsive Disorder. It appears that while a question had been posed to the said doctor by the Party-in-Person as to whether a person suffering from Obsessive Compulsive Disorder and suicidal tendencies can live with his wife and children and whereas, in view of the objection taken by the learned Advocate Mr. Bhatt for respondent-husband, the said question had been disallowed.
11. Be that as it may, it also appears that the said doctor after examining the husband at the relevant point of time and having treated the husband, and whereas it also appears that the surgeon in-charge of the CHC had referred the husband to the Civil Hospital, Ahmedabad for psychological treatment. It appears that it is upon such facts being revealed during the testimony of the said doctor in the month of July, 2021 that the Party-in-Person applicant herein had realized about the husband suffering from some psychological illness. It also appears that upon coming to know of such facts, the applicant Party-in-Person had moved an application below Exhibit 177 in the month of October, 2021.
12. Having perused the testimony of the doctor concerned and also having gone through the medical papers which are annexed Page 10 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 with the present application, more particularly, as regards treatment of the respondent-husband at the relevant point of time i.e. in the year 2012, it clearly appears that the respondent husband himself had revealed before the doctor that he was taking psychiatric treatment for last 5 to 6 years for Obsessive Compulsive Disorder. It also appears that at the relevant point of time, as revealed from the testimony of the doctor that the respondent-husband had been referred to the Civil Hospital, Ahmedabad for psychiatric treatment and whereas, according to the testimony of the doctor concerned, the referral was by the surgeon and not by the said witness.
13. Having regard to such circumstances, it prima facie appears that as far as back in the year 2012 i.e. prior to the filing of the Family Suit, the respondent-husband had revealed about the husband undergoing some psychological treatment and whereas, considering that such revelation had been to a doctor where the husband had gone for treatment, this Court does not find any reason to prima facie disbelieve such testimony, more particularly for the purpose of the present petition.
14. At this stage, this Court seeks to rely upon decision of the Hon'ble Apex Court in case of Sharda Vs. Dharmpal reported in Page 11 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 2003 4 (SCC) 493 whereby the Hon'ble Apex Court had inter alia laid down the law with regard to Section 12 of the Family Courts Act, more particularly, with regard to exercise of powers by the learned Family Court to direct a person to undergo medical tests. The Hon'ble Apex Court having elaborately discussed the law with regard to the said issue, at paragraph 81 had clarified the said aspect and whereas, paragraph 81 is reproduced herein below for benefit.
Paragraph 81:
"1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the court should exercise 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."
Page 12 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022
C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022
15. A perusal of the law laid down by the Hon'ble Apex Court in decision of Sharda (Supra) clearly reveals that as per the Hon'ble Court, the Matrimonial Court- Family Court here has the power to order a person to undergo medical tests. It is also clarified by the Hon'ble Apex Court that such a direction would not be in violation of the right to personal liberty available to such person under Article 21 of the Constitution of India. The precondition as laid down by the Hon'ble Apex Court for exercising such power is that if there is a strong prima facie case in favour of the applicant and there is sufficient material before the Court then the Court could order medical examination and whereas, according to the Hon'ble Apex Court in case the person so directed to undergo medical examination refuses to subject himself to such medical examination then the Court concerned would be entitled to draw an adverse interference against such person.
16. Considering the fact situation from the stand point of the law laid down by the Hon'ble Apex Court, while it is clear that the Family Court in fact has the power to direct any person to undergo medical evaluation but at the same time, the precondition being there should be a strong prima facie case in favour of the person Page 13 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 requesting medical examination of another and there should be sufficient material with regard to such prima facie case before the Court. In the instant case as it appears and as noted herein above, the testimony of Dr. A. A. Kureshi, clinches the issue in favour of the applicant-wife. The said doctor who had treated the respondent- husband as far back as in the year 2012, has noted that the husband was undergoing psychiatric treatment for around 5 to 6 years for Obsessive Compulsive Disorder. It also appears that at the relevant point of time the doctor had prima facie opined that the husband was having suicidal tendencies, more particularly, having regard to the nature of injuries i.e. self-inflicted injuries by the husband. It also appears that a surgeon in-charge of the hospital concerned, had at the relevant point of time opined/ referred the respondent- husband for psychological treatment to the Civil Hospital at Ahmedabad. The said aspects, are supported by the medical papers, more particularly, the medical papers of the General Hospital, Gandhinagar dated 24.08.2012 where the respondent-husband had gone for treatment of the self-inflicted injuries. The aspects noted in the testimony of Dr. Kureshi are found in the case papers of the respondent-husband. Having regard to the same, the twin conditions laid down by the Hon'ble Apex Court i.e. a strong prima Page 14 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 facie case and sufficient material, are both fulfilled in the present case.
17. It further appears that a submission had been raised by learned Advocate for the respondent that the applicant-wife herein, had neither raised the issue in her written submissions nor any issue having been framed by the learned Family Court in this regard. As against the same, in the considered opinion of this Court, this Court finds force in the submission of the Party-in- Person that it is only upon the testimony of Dr. Kureshi that the applicant-wife had learned about the psychological treatment being taken by the respondent-husband for Obsessive Compulsive Disorder. It also appears that immediately upon the testimony of the Dr. Kureshi for July, 2021 the applicant had moved an application in October, 2021 for psychological evaluation. Thus, any time prior thereto i.e. either at the stage of filing the written submission or at the stage of framing of issues, more particularly, since the applicant Party-in-Person-wife could reasonably contend that before the examination / testimony of Dr. Kureshi since the wife was not aware about such facts, she could not have preferred any such application.
Page 15 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022
C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 17.1. Furthermore, it also appears that the aspect of psychological evaluation of the respondent-husband, would have a clear bearing on issues no. 2 and 6 as framed by the learned Family Court, more particularly, with regard to the wife being treated cruelly by the husband and with regard to the finding out who had deserted whom from the parties to the marriage. Furthermore, in the considered opinion of this Court, it is always open for the learned Family Court, after the psychological evaluation of the respondent-husband to frame additional issues, if need be, with regard to any finding/ opinion by the psychological expert.
18. Insofar as the submission made by learned Advocate Mr. Bhatt with regard to the jurisdiction of this Court under Article 227 of the Constitution of India being required to be exercised only sparingly and in exceptional cases, in the considered opinion of this Court, the present would definitely fall under the category of an exceptional case. In a dispute between the husband and wife where the husband has filed for divorce against the wife on the ground of cruelty, the aspect of medical/ psychiatric evaluation of the husband as to whether the husband is suffering from Obsessive Page 16 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 Compulsive Disorder/ Psychiatric illness or not, more particularly, since there is prima facie strong case in favour of the applicant- wife herein and since there is sufficient material as per the twin test laid down by the Hon'ble Apex Court in case of Sharda (supra), it clearly appears that the learned Family Court had erred in rejecting such application and therefore, as noted herein above in view of the exceptional nature of the case, the present would be a fit case for this Court to exercise jurisdiction available to this Court in Article 227 of the Constitution of India.
19. At this stage, this Court seeks to rely upon the decision of the Hon'ble Apex Court in case of Garment Craft Vs. Prakash Chand Goel reported in 2022 4(SCC) page. 181. Paragraph 15 of the said decision being relevant for the present purpose is quoted herein below for benefit.
Paragraph 15:
"Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Page 17 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice."
20. The Hon'ble Apex Court has laid down the law with regard to exercise of powers by this Court under Article 227 of the Constitution of India. The Hon'ble Apex Court, while holding that power under the Article 227 of the Constitution of India has to be exercised sparingly and in exceptional cases has also laid down Page 18 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 that such power is to be exercised to ensure that there is no miscarriage of justice. In the instant case, in the considered opinion of this Court, rejecting the application preferred by the applicant- wife, more particularly, in view of the strong prima facie case made out by the respondent-wife and in view of the sufficient material produced by the respondent-wife, has clearly, in the considered opinion of this Court, caused of miscarriage of justice and whereas, under such circumstances, interference of this Court is warranted.
21. Having regard to the discussions, findings and conclusions arrived at herein above, in the considered opinion of this Court, the present application deserves to be allowed. In this view of the matter, the following directions are passed.
[1] Order dated 03.09.2022 passed by the learned Principal Judge, Family Court, Gandhinagar below Exhibit 177 in Family Suit No. 166 of 2013 is hereby quashed and set aside.
[2] The learned Family Court is directed to appoint a medical expert/ psychiatrist for the psychological evaluation of the respondent-husband i.e. Mr. Apurva J. Dave.
Page 19 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022
C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 [3] The learned Family Court is at liberty to appoint a competent medical expert and also to lay down the terms of reference, evaluation, if though fit. The learned Family Court is also at liberty to lay down a specific time limit for such medical evaluation. [4] The learned Family Court upon the medical expert/ psychiatrist submitting his report, shall proceed further with regard to the same in accordance with law.
[5] In case the respondent-husband does not submit himself for psychiatric evaluation, then as per the law laid down by the Hon'ble Apex Court in Sharda (Supra), the learned Family Court would be entitled to draw adverse inference against the respondent- husband.
[6] The entire exercise as noted herein above shall be finalized by the learned Family Court within a period of 3 months from the date of receipt of this order.
22. With these observations and directions, the present application is disposed of as allowed. Needless to mention that all the above observations, are for the purpose of deciding the present Page 20 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022 C/SCA/20552/2022 JUDGMENT DATED: 09/12/2022 application and whereas, the learned Family Court shall not in any manner be prejudiced by any of the observations herein above while finally deciding the Family Suit. It is further directed that after the opinion of the medical expert is received or after the respondent-husband does not subject himself to medical examination in spite of direction of the Family Court, the learned Family Court shall decide the Family Suit No. 166 of 2013 as expeditiously as possible, more particularly, considering that the some had been filed in the year 2013. Rule is made absolute to the above terms.
Sd/-
(NIKHIL S. KARIEL,J) Mrs.J.J.Kedia/V.V.P. PODUVAL Page 21 of 21 Downloaded on : Sat Dec 24 02:33:16 IST 2022