When Lalit Kishore of Jabalpur filed for a divorce in a Madhya Pradesh family court on the ground that his wife Meeru was insane, he had thought that he would get the divorce quite easily. After all, insanity, like desertion or infidelity, was one of the commonest grounds for seeking a divorce under the Hindu Marriage Act. But his wife fought back, alleging that her husband was falsely trying to prove her insane in order to get a quick divorce.

Lalit Kishore’s counsels asked the family court, and later the Madhya Pradesh High Court, to force Meeru to undergo a medical examination to prove her sanity. But the petition was rejected by both courts on the ground that no one could be forced to undergo a test to prove that he or she was sane. Such a forcible test, the courts pointed out, would go against the tenets of Article 20 of the Constitution which stipulated that a person could not be forced to be a witness against himself or herself.

However, in a landmark judgement passed on August 4, 2009, Justices Tarun Chatterjee and R.M. Lodha of the Supreme Court ruled in favour of Lalit Kishore. The apex court held, “…a husband or a wife can be compelled to undergo medical examination at the instance of either spouse... to check their physical and mental state.”

Legal experts say that the judgement is sensational as neither the Hindu Marriage Act nor any other law pertaining to matrimony has any provision that empowers the court to compel a man or a woman in a matrimonial dispute to submit himself or herself to a medical examination.

“According to Article 20, clause (3), of the Indian Constitution, a person cannot be forced to be a witness against himself,” says Joy Sengupta, lawyer, Calcutta High Court. “The onus of proving one’s sanity or innocence cannot be upon the accused.”

Indeed, clause (3) of Article 20 embodies the principle of protection against the compulsion of self-incrimination. This is one of the fundamental canons even of the British system of criminal jurisprudence and has been adopted by the Americans as well.

So why did the Supreme Court give a ruling that appears to be at variance with what the law sets out?

Some lawyers feel that by ruling in favour of a test to ascertain sanity, the apex court has acted in the spirit of imparting justice to all. “The primary duty of the court is to see that the truth comes out. So the court can always satisfy itself on whether or not the defendant is suffering from a mental illness in order to get the correct evidence. The medical expert examining the spouse can also be a good witness, and both spouses will get justice in the process,” says Alok Kumar Mitra, senior criminal lawyer, Calcutta High Court.

Mitra adds that Section 165 of the Indian Evidence Act gives the court the discretion to examine the witness at any stage if it appears to be essential. Section 151 of the Code of Civil Procedure also says that the court has the inherent right to give orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

“Besides, though a person can always refuse to subject himself or herself to a medical examination, the court can take adverse presumption and conclude that he or she is deliberately withholding evidence,” observes Sengupta.

Mitra points out that there have been instances where the court has called an independent medical specialist to decide on the truth or otherwise of a husband or a wife’s allegation of insanity.

However, the problem here is that such medical evidence can often be doctored, fabricated or misinterpreted.

Says clinical psychologist Dr Rajyasree Bandopadhyay, “Cases of lawyers misinterpreting our certificates and prescriptions are so common that we as a fraternity have decided to write a note at the bottom of each prescription. The note says that the certificate is for professional and clinical purpose and needs co-relation in a court of law.”

Others say that the Supreme Court ruling will only give a fillip to divorce cases being filed on trumped up charges of insanity. Women’s rights activist Saswati Ghosh feels that the verdict has left a lot of scope for misuse in connivance with unscrupulous medical professionals. “Like adultery and desertion, mental disorder has often been an easy ground employed by husbands to file for a divorce. The husbands have better resources and contacts with doctors, psychiatrists and so on, whereas the wife, in most cases, is probably without any contacts. It’s not difficult for the husband to get a certificate showing that the wife has been suffering from a mental illness,” she adds.

However, it is not as if a spouse who is charged with insanity does not have any protection from the law. Ramkrishna Roychowdhury, lawyer, Alipore Judges Court, Calcutta, says that a person accused of insanity can always appeal to the court to set up a medical board. “The court can seek the help of an independent professional who has no interest in the case and need not rely on the doctor’s certificate produced by the complainant.”

Section 13 (1) (iii) of the Hindu Marriage Act explains the kind and extent of insanity that can lead to a divorce. The person has to suffer continuously or intermittently from mental disorder. Moreover, the extent of the malady should be such that the spouse cannot reasonably be expected to live with him or her.

Mental disorder has been explained as mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind such as schizophrenia. The law also states that if a person’s behaviour is so destructive or is so extreme as to be a threat to the lives of others, the couple in question cannot be expected to stay together. There are several internationally accepted psychometric and personality tests that are conducted to ascertain the level of sanity or insanity in a person.

Clearly, tests of sanity may be required in certain matrimonial disputes. It remains to be seen whether making them mandatory will truly serve the cause of justice.