Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944 O.P.(FC) NO. 39 OF 2023 AGAINST THE ORDER DATED 14.12.2022 IN I.A.NO.11 OF 2022 IN O.P.NO.196 OF 2018 ON THE FILE OF THE FAMILY COURT, THRISSUR PETITIONER: RAMESH C.K., AGED 55 YEARS, S/O KUMARAN, CHERKKARA THANDAYAN HOUSE, P.O. THRITHALOOR WEST, THRISSUR DISTRICT, PIN - 680619. BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R RESPONDENT: DHANYA AGED 45 YEARS, D/O EDASSERY DHARMAPALAN, KAIPAMANGALAM VILLAGE, CHENTHRAPPINY DESOM, KARIPAMANGALAM P.O., THRISSUR DISTRICT, PIN - 680681. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
P.G. Ajithkumar, J.
The respondent in O.P.No.196 of 2018 on the file of the Family Court, Thrissur has filed this Original Petition under Article 227 of the Constitution of India. He seeks to set aside Ext.P9 order dated 14.12.2022 in I.A.No.11 of 2022 in O.P.No.196 of 2018.
2. Heard the learned counsel appearing for the petitioner in detail.
3. The respondent filed O.P.No.196 of 2018 seeking
dissolution of her marriage with the petitioner under Section 13 of the Hindu Marriage Act, 1955. I.A.No.5 of 2021 was filed by the petitioner in O.P. seeking counselling of the parties by a clinical psychologist. That application was dismissed as per Ext.P3 order. That order was challenged in O.P.(FC) No.403 of 2021. An interim order, Ext.P4 was passed in that Original Petition on 10.08.2021 instructing the Family Court to interact with the parties in
the presence of the children and make an endevour for an effective settlement. During the course of interaction in terms of the said order, the Family Court found that counselling of the parties was required and accordingly, the parties were referred to a clinical psychologist. Later, the petitioner was sent for assessment by a Medical Board. The Medical Board issued Ext.P5 evaluation report, wherein it was observed that being the issue related to a marital discord, presence of the wife was also required for a proper assessment. In the light of that report, the petitioner has filed I.A.No.9 of 2022 to refer the respondent-wife for evaluation by the Medical Board. That I.A. was allowed and the respondent was directed to appear before the Medical Board for evaluation. She, however, did not turn up. The petitioner also filed I.A.No.11 of 2022 seeking to keep the proceedings in O.P.No.196 of 2018 till a report of the
Medical Board is received. As per the order dated 14.12.2022, the Family Court closed I.A.No.11 of 2022 recording as follows:- “Report of the Medical Board stating that the petitioner not appeared before the Medical Board is received. Hence the I.A. is closed.”
4. The petitioner wants to set aside Ext.P9 and direct
the respondent to appear before the Medical Board in terms of the directions contained in Ext.P6. The learned counsel appearing for the petitioner would submit that the respondent undertook before the Family Court to appear before the Medical Board for counselling and as such she is bound to honour the said undertaking. Since the Medical Board is of the opinion that unless the respondent-wife also is appeared, a
proper evaluation would not be possible and in such circumstances, interference by this Court is highly essential. The endeavour of this Court as could be seen from Ext.P4 and the Family Court as is evident from Ext.P6 was to reach an amicable settlement between the parties. The learned counsel therefore would submit that the respondent shall have to be directed to appear before the Medical Board.
5. A settlement is possible only if both parties to the
lis agree. This Court as well as the Family Court made every endeavour to find out a settlement of the disputes between the parties. Being a marital dispute and welfare of the children is involved, it is only appropriate to attempt for a settlement of the disputes. But that cannot be fulfilled by
compelling a party. The purpose of medical and psychological evaluation ultimately is to decide the dispute in the lis, if an amicable settlement is not possible. When the respondent refuses to appear before the Medical Board, despite the direction of the Family Court, an adverse inference may follow if a decision on the question is ultimately to be taken.
6. In such circumstances, a direction to the
respondent to appear before the Medical Board is not liable to be issued by this Court in exercise of the powers under Article 227 of the Constitution of India. Considering the matters transpired before the Family Court, we do not think that Ext.P9 order suffers from any infirmity or illegality. Therefore, we are of the view that Ext.P9 order does not require interference.
Resultantly, this Original Petition is dismissed. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr APPENDIX OF OP (FC) 39/2023 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE O.P. NUMBERED AS O.P. 196/2018 BEFORE FAMILY COURT, THRISSUR EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 02- 08-2019 IN I.A. 3491/2019 IN O.P. THRISSUR EXHIBIT P3 THE TRUE COPY OF THE ORDER DATED 29- 07-2021 IN I.A. 5/2021 IN O.P 196/2018 ON THE FILES OF FAMILY COURT, THRISSUR
EXHIBIT P4 THE TRUE COPY OF THE INTERIM ORDER
DATED 10-08-2021 IN O.P.(F.C.) HIGH COURT OF KERALA EXHIBIT P5 THE TRUE COPY OF THE REPORT DATED 25- 11-2021 SUBMITTED BY THE MEDICAL BOARD EXHIBIT P6 THE TRUE COPY OF AN ORDER DATED 03-08- 2022 IN I.A. 9/2022 IN O.P. 196/2018 ON THE FILES OF FAMILY COURT, THRISSUR EXHIBIT P7 THE TRUE COPY OF THE LETTER BY GOVERNMENT MEDICAL COLLEGE HOSPITAL DATED 28-09-2022. EXHIBIT P8 THE TRUE COPY OF THE I.A. 11/2022 DATED 25-10-2022 IN O.P.196/2018 ON THE FILES OF FAMILY COURT, THRISSUR EXHIBIT P9 THE TRUE COPY OF THE ORDER DATED 14- 12-2022 IN I.A. 11/2022 IN O.P. THRISSUR.