The Telegraph
Since 1st March, 1999
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A medical report is a private matter, its contents known by the doctor and his patient, and, by extension, the patient’s family. The attitudes of society, however, determine the degree of privacy associated with different diseases: some diseases are more private than others. Unsoundness of mind, for example, is not a condition to be advertised, it does not belong to the same category as influenza or malaria. The Supreme Court, though, has decided that a matrimonial court, dealing with a case of divorce filed on health grounds, would have the power to order a medical examination. The particular case that has led to this ruling has a husband filing for divorce on the ground of the wife’s “unsoundness of mind”. The ruling raises the question of privacy — in technical terms, of personal liberty. The court has clarified that, given the issues involved, such an order would not be considered to violate the right to personal liberty under Article 21 of the Constitution. There is also the problem of indiscriminate use of the power now granted to matrimonial courts. The Supreme Court has recommended discretion in its application. It is to be used on a case to case basis, on the ground of evidence already produced.

The model here is the American system, in which a medical examination of the kind suggested is sometimes permitted when the issue is one of dissolution of marriage or child custody. The doctor-patient privilege cannot be deemed absolute when such crucial questions are brought to judgment. There is no doubt that the Supreme Court’s order has some very distinct advantages when put in the context of the woman’s situation in Indian society. Ironically enough, the particular case that is the source of the ruling is one brought by a husband against a wife. But labelling a wife mad is one of the commonest ploys to get rid of her. Even doctors have been known to connive with husbands and in-laws in order to establish the wife’s unsoundness of mind. Conversely, the woman’s lack of social and economic power often renders her helpless when she is forced to live with a husband who is similarly afflicted. A medical examination by court order would ideally help a victimized woman. Thus, the precedent established by this case could be helpful to women. But certain clarifications have yet to be sought. Unsoundness of mind is bad enough, but something like AIDS would bring up greater problems. It will have to be decided whether, in view of Indian society’s uninformed attitude to AIDS, matrimonial courts will have the right to order such other types of medical examination too.

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