TMI Blog2003 (3) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on 5th May, 1999. The appellant objected thereto inter alia on the ground that the Court had no jurisdiction to pass such directions. By an order dated 8.10.1999 the said application was allowed directing the appellant to submit herself to the medical examination. Aggrieved by the said order, she filed a Revision Petition before the High Court which was dismissed by the impugned judgment. 3. Mr. Kaushik, the learned counsel appearing on behalf of the appellant herein has principally raised two contentions in support of this appeal. Firstly, compelling a person to undergo a medical examination by an order of the Court would be violative of right to 'personal liberty' guaranteed under Article 21 of the Constitution of India. Secondly, in absence of a specific empowering provision, a court dealing with matrimonial cases cannot subject a party to the lis to undergo medical examination against his her volition. In the event, if a party does not undergo such medical examination, the Court may merely draw an adverse inference. 4. The learned counsel in support of his aforementioned contentions relied upon Bipinchandra Shantilal Bhatt v. Madhuriben , Smt. Revamma v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely,- (a) ..... (b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; 13. DIVORCE. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) ... (ii) ... (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation: In this clause - (a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia: (b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13(1)(iii) of the Hindu Marriage Act. The burden of proof of the existence of requisite degree of mental disorder is on the spouse making the claim on that state of fact. 12. The decision rendered by various courts of this country including this Court lead to a conclusion that a decree for divorce in terms of Section 13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may behave strangely or oddly inappropriate and progressive in deterioration in the level of work may lead to a conclusion that he or she suffers from an illness of slow growing developing over years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating a short temper and somewhat erratic behavior on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder. 13. It may be noticed that Section 2(1) of the Mental Health Act, 1987 defines mentally ill person to mean a person who is in need of treatment by reason of any mental disorder other than mental retardation. Mental disorder may further be of vary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educing a human being into a functional nonentity and as a negative unit in family or society is law's concern also is reflected, at lest partially, in the requirements of Section 13(1)(iii). In the last analysis, the mere branding of a person as schizophrenic will not suffice. For purposes of Section 13(1)(iii) 'schizophrenia' is what schizophrenia does. 15. Having regard to the complexity of the situation, the doctor's opinion may be of utmost importance for granting or rejecting a prayer for a decree of divorce. The question is as to whether a mental disorder is curable can be subject matter of determination of by a Court of Law having regard to the expert medical opinion and particularly the ongoing development in the scientific and medical research in this direction. 16. The Hindu Marriage Act or any other law governing the field do not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, in our opinion, this does not preclude a court from passing such an order. We may, however, notice that such provisions have expressly been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is competent to accept or refuse treatment. In principle a patient may remain competent notwithstanding detention under the Mental Health Act 1983. (ii) If the patient is competent and refused consent to the treatment, an application to the High Court for a declaration would be pointless. In this situation the advice given to the patient should be recorded. For their own potential hospital authorities should seek unequivocal assurances from the patient (to be recorded in writing) that the refusal represents an informed decision, that is, that she understands the nature of and reasons for the proposed treatment, and that risks and likely prognosis involved in the decision to refuse or accept it. If the patient is unwilling to sign a written indication of this refusal, this too should be noted in writing. Such a written indication is merely a record for evidential purposes. It should not be confused with or regarded as a disclaimer. (iii) If the patient is incapable of giving or refusing consent, either in the long term or temporarily (e.g. due to unconsciousness) the patient must be cared for according to the authority's judgment of the patient's best interests. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Phipson on Evidence, 14th Edition, it is stated: 9-01 Competence is to be distinguished from compellability. A person may be admitted to give evidence, though in certain cases he will not be compelled by the court to do so. In general, all persons are both competent and compellable. A person, however, though competent and compellable as a witness may not be competent or may not be compellable to give evidence as to particular matters. 26. It has been further stated: 1-13 Detention, preservation, inspection, samples, photographs, experiments - .....A report by a court expert may be ordered under Order 40, Rule 1, and this may involve experiments and tests. In patent actions this power is given by Order 103, Rule 27, but there is a discretion, and the court will not make an order for an inspection for what may be nothing more than a fishing inspection; in arbitrations by the Arbitration Act 1950, Section 12(6); in reference by Order 36, and in country court cases by C.C. Rules 1981, Order 19 and Order 21, Rule 6 (an inspection of a lady's mouth by a dentist was, however, refused under these rules as not being any property or thing the subject-matter of the action ). N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unacy Act read thus: Order 32 Rule 15: RULES 1 TO 4 (EXCEPT RULE 2-A) TO APPLY TO PERSONS OF UNSOUND MIND. Rules 1 to 14 (except Rule 2-A) shall so, far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued. 41. Powers of Court in respect of attendance and examination of lunatic-- (1) The Court may require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or by any person from whom the Court may desire to have a report of the mental capacity and condition of such alleged lunatic. (2) The Court may likewise make an order authorizing any person or persons therein named to have access to the alleged lunatic for the purpose of a personal examination. 30. It will also be relevant to note that the Court has power to issue appropriate direction for protection of human rights of mentally ill persons and to see to it that a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a question about the paternity of a child noticed the provision of Section 112 of the Evidence Act and held that the presumption arising thereunder can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. It was held: 26. From the above discussion it emerges- (1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to having roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis . 40. Goutam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent be permitted to undergo medical examination for the purpose of finding out as to whether unsoundness of mind of the respondent was incurable or not. 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. 46. In P.A. Anbu Anandan (supra) the question before the Court was as to whether there had been a consummation of marriage. Following Gautam Kundu (supra) it was held that the Court cannot compel a person for compulsory medical examination of a party against his wish. 47. In Smt. Ningamma and Another (supra) it was observed: 21...Right to personal liberty is also very important. To compel a person to undergo or to submit himself or herself to medical examination of his order blood test or the like without his consent or against his wish tantamounts to interference with his fundamental right of life or liberty particularly even when there is no provision either in the Code of Civil Procedure or the Evidence Act or any other law which may be said to authorize the Court to compel a person to undergo such a medical test as blood group te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essity of saying that all relief (sic) be denied or of applying the means within our power. The Court must not sacrifice justice to notions of delicacy of its own. See also Norton v. Seton [(1819) 3 Phill 117]; Pollard v. Wybourn [(1828) 1 Hag. Ecc. 725]; Aleson v. Aleson [(1728) 2 Lee Ecc. 576]; Sparrow v. Harrison [(1841) 3 Curt. 16]; affirmed in Harrison v. Harrison [(1842) 4 Moo. P.C. 96]. Where a party refuses to attend for medical inspection, the Court may properly draw an unfavourable inference. This was laid down in the case of a female respondent F. v. P. [(1896) 75 L.T. 192] and was extended to the case of a male respondent in B. v. B. [(1901) P. 39] and was applied again in the case of a female respondent in W. v. S. [(1905) P. 231]. The Courts naturally exercise a wide discretion in ordering physical examination and always do so, subject to such conditions as will afford protection from violence to natural delicacy and sensibility. We understand that the respondent does not object to a proper medical examination. 50. In G. Venkatanarayana (supra) the Andhra Pradesh High Court upon taking into consideration its earlier decision as also judgments of other High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out only in the event, he is examined by a properly qualified Psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests. 52. If the Court for the purpose envisaged under Order 32 Rule 5 of Code of Civil Procedure or Section 41 of the Indian Lunacy Act can do it suo motu, there is no reason why it cannot do so on an application filed by a party to the marriage. 53. Even otherwise the Court may issue an appropriate direction so as to satisfy himself as to whether apart from treatment he requires adequate protection inter alia by way of legal aid so that he may not be subject to an unjust order because of his incapacity. Keeping in view of the fact that in a case of mental illness the Court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the Court may take recourse to such a procedure even at the instance of the party to the lis. 54. Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent will necessarily have to go through a process of case- by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute. 62. Having outlined the law relating to right to privacy in India, it is relevant in this context to notice that certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain medical or other tests. 63. By way of example, we may refer to Section 185, 202, 203, 204 of the Motor Vehicles Act; Section 53 and 54 of the Code of Criminal Procedure and Section 3 of the Identification of Prisoners Act, 1920. Reference in this connection may also be made to Sections 269 and 270 of the Indian Penal Code. Constitutionality of these laws, if challenge is thrown, may be upheld. 64. In M. Vijaya v. The Chairman, Singareni Collieries and Ors. reported in AIR 2001 (AP) 502, the court, upon a detailed discussion of the competing rights of a private party and public right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rison Laws, as soon as a prisoner is admitted to prison, he is required to be examined medically and the record of prisoner's health is to be maintained in a register. Women prisoners can only be examined by the matron under the general or special powers of the Medical Officer. As per Section 37 of the Prisons Act, any prisoner wanting to be medically examined or appearing to be sick has to be reported before the Jailor who in turn is liable to call the attention of the Medical Officer in that behalf and all the directions issued by the Medical officer are to be recorded. 66. It was also noticed: Under the ITP Act, the sex workers can also be compelled to undergo HIV/AIDS test. When sex workers are detained in corrective institutions or welfare homes either under Section 10A or under Section 17(4) or 19(2) of the Act, there are adequate provisions for medical examination. There are also provisions in segregating rescued women who are suffering from venereal diseases. We may also notice that Section 2 of Dissolution of Muslim Marriage Act, 1939, Section 32 of Parsi marriage and Divorce Act, 1936, Section 10 of Indian Divorce Act, 1869. Section 13 of Hindu Marriage Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the circumstances, subject matter and background of the case. 68. The Court of Appeal, however, in R (on the application of S) v. Chief Constable of South Yorkshire, (2003) 1 All ER 148, upheld a legislation compelling preservation of finger prints, bodily samples, DNA profiles and DNA samples despite Article 8 and 14 etc. of the Human Rights Act, 1998 which are as under: 8. Right to respect for private and family life. (1) Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 14. Prohibition of discrimination. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment with the Divisional Court that the interference with Article 8(1) rights of the individuals from whom the fingerprints and samples are taken is justified by Article 8(2). In considering whether the interference with Article 8(1) is justified, it is relevant that if my approach to the article is correct, in this jurisdiction Article 8(1) may have a longer reach than is strictly required by the convention as applied by Strasbourg. If this is the result of the approach of society here then Parliament, as the democratically-elected body representative of the public, has undoubtedly the untrammelled right to establish the circumstances in which interference is justified as long as it does not fall below the standard set by the convention, proportionality. 70. As regard Article 14 Issue, the learned Judge stated: In the present circumstances when an offence is being investigated or is the subject of a charge it is accepted that fingerprints and samples amy be taken. Where they have not been taken before any question of the retention arises they have to be taken so there would be the additional interference with their rights which the taking involves. As no harmful conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held not to violate the Fifth Amendment of the US Constitution. In Armando Schmerber v. State of California (384 US 757) obtaining of an alcohol test has been held not to be unconstitutional. Similarly in Paul H. Breithaupt. v. Morris Abram (352 US 432) taking of blood sample from an accused has been held to be not in violation of Constitution 5th Amendment. In Charles Joseph Kastigar and Michael Gorean Stewart v. United States (US 32 L.Ed. 2d 212) It is stated: The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established, but is not absolute, being subject to a number of exemptions, the most important of which is the Fifth Amendment privilege against self- incrimination. 73. In Encyclopedia of the American Constitution, Volume 6 at page 2677 under the heading 'Testimonial and nontestimonial Compulsion', it is stated: The Court prefers a different formulation: does non-testimonial compulsion force a person to be a witness against himself criminally? The consistent answer has been no , even if there was a testimonial dimension to the forced admissions. If that testimonial dimension loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 688 A2d. 955, 961 it was held that such privilege if granted can seriously impact the child custody and dissolution of marriage proceedings. 75. If the nature of the information relates directly to the well-being of the child or to the parent's ability to adequately care for child, and the court believes the child is potentially in danger, courts are likely to admit the information despite a patient's expectation of confidentiality. There are two competing interests involved when a court determines whether to compel discovery of a patient-litigant's mental health records over his objection in a child custody dispute. The first involves the privacy, confidentiality and privilege expectation of both the patient and the treating mental health professional in those communications. The second involves the application of the best interests of the child(ren) standard. Virtually every jurisdiction in the United States makes a child custody determination based upon the best interest of the child . 76. Privacy is defined as the state of being free from intrusion or disturbance in one's private life or affairs . mental health treatment involves disclosure of one&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utweighs the limitations placed upon the court by not having such information revealed against a parents' wishes. 79. At this stage we may observe that taking of a genetic sample without consent may in some countries e.g. Canada be viewed as a violation of the person's physical integrity although the law allows such forced taking of sample. But even this practice was held to be valid when the sample is collected by a health care professional. Collecting samples from the suspects for DNA tests in some countries have not been found to be violative of right of privacy. 80. In the response of the Privacy Commissioner of Canada to Department of Justice consultation paper Obtaining and Banking DNA Forensic Evidence, it is stated: 3. Collecting DNA from suspects DNA evidence should not be collected from a suspect unless the information is relevant to a specific crime in question. For example, it would be appropriate to obtain a DNA sample from a suspect where DNA evidence is left at the scene of the crime and the suspect's DNA is needed to prove the suspect's involvement. DNA evidence should not be collected from suspects as a matter of routine. To do so caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 mattes 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 competing interests by balancing the interests involved. 82. If fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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