The Telegraph
Since 1st March, 1999
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Health test option in divorce tussle

New Delhi, April 1: The Supreme Court today put its stamp on the power of a matrimonial court to order medical examination of a spouse if the other in a divorce petition makes health a ground for dissolution of the marriage.

Expanding the scope and horizon of Indian jurisprudence to that of its US counterpart, the apex court said if the party told to undergo medical examination did not comply with orders, the matrimonial court would draw an adverse inference against the party.

The bench of Chief Justice V.N. Khare and Justices S.B. Sinha and A.R. Lakshmanan also ruled that such an order for medical examination “would not be in violation of the right to personal liberty under Article 21 of the Constitution”.

The judgment was passed in the matrimonial case between Mrs S and Mr D (names withheld according to apex court guidelines), in which the woman was asked to undergo a medical examination by Rajasthan High Court after the husband sought divorce on grounds of her “being (of) unsound mind”.

The bench said “such issues have cropped up in the United States of America in dissolution of marriage proceedings or a child custody dispute” as US courts have ordered medical examination to determine mental health and parental fitness.

In the US, federal common law, state common law, state statutes and federal rules of evidence recognise the protection of confidential communication with health professionals on the basis of “psychotherapist-patient privilege”.

Yet, “it has been held by US courts that no privilege is absolute especially when it relates to determining the fitness of the parents”, the bench pointed out.

Likewise in India, the apex court concluded, “the (matrimonial) court should exercise such a power (to order medical examination) if the application 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 to medical examination, the court will be entitled to draw an adverse inference against the respondent,” the bench said.

In the current case before the apex court, the woman concerned appealed that a medical examination would violate her fundamental right to personal liberty as guaranteed under Article 21 of the Constitution — which US law calls “privilege”.

The court, referring to US courts’ decisions that no privilege could be absolute, however, said once the opposite party convinced the court there was enough on record to prove or show the other party is of “unsound mind”, the matrimonial court could order a medical examination.

The bench cited several finalised cases to show DNA evidence, too, was often ordered to obtain evidence left at the crime scene by a perpetrator.

But the court did not give its opinion on a matrimonial court’s course of action if AIDS were to be made a health ground for divorce because the current case only raised questions of law about the husband’s contention that the wife was of “unsound mind”.

According to the apex court’s judgment today, a matrimonial court “has the power to order a person to undergo medical test”, the type and nature of which would depend on individual cases.

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