SHARDA versus DHARMPAL

Citation: [2003] 3 S.C.R. 106 · Decided: 28-03-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Dismissed

Cited by 7 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
SHARDA 
V. 
DHARMPAL 
MARCH 28, 2003 
[V.N. KHARE. CJ, S.B. SINHA AND DR. AR. LAKSHMANAN. JJ.] 
Hindu Marriage Act, 1955/Cod? of Civil Procedure, 1908-Sections 
12(/)(bj and 13(/)(iii)!Section 151-Matrimonial proceedings-Divorce sought 
C on the gro11nd of ill mental health of spouse--Application for medical 
examination-Jurisdiction of Co11rt to pass direction for the examination-
Held: Though the Act or any other law governing the field do not expressly 
empower the Court to issue a direction for such examination, matrimonial 
Court has power to pass such order under its discretionary power uls 151 
CPC-However Court to exercise such power only in case of strong prima 
D facie case with s11fjicient material-In case of refi1sal for submission for the 
examination, Court entitled to draw adverse inference-Code of Civil 
Procedure, 1908-Section 75(e}, Order 32 Rule 15, Order 26 Rule !OA-
Lunacy Act, 1912-Section 41-Mental Health Act, 1987-Section 2(1)-
Persons with Disabilities (Equal Opportunities Protection of Rights and Full 
E Participation) Act, 1995-National Trust for Welfare with Autism, Cerebral 
Palsy, Mental Retardation and Muhiple Disabilities Act, 1999-Universal 
Declaration on the Rights of Disabled Persons, 197 5. 
Constitution of India, 1950--Article 21-Right to privac)~Order for 
medical examination by matrimonial Court-Whether violative of the right-
F Held: No-Right to privacy is not an absolute right-In case of conflict between 
fimdamental rights of two parties, the right which advances public morality 
would prevail. 
Respondent-husband filed application for divorce under Section 
12(l)(b) and 13(l)(iii) of Hindu Marriage Act, 1955. He also filed an 
G application seeking direction for medical examination of the appellant-wife 
as to whether she was of unsound mind. The application was allowed by 
District Judge directing her to submit herself for medical examination. 
Revision Petition against the order was dismissed by High Court. 
H 
In appeal to this Court appellant contended that in the absence of a 
106 
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SHARDA 11. DHARMPAL 
107 
specific empowering provision, the Court dealing with matrimonial cases A 
cannot subject a party to the lis to undergo medical examination against 
her volition; that in case of refusal to undergo medical examination, the 
Court may merely draw an adverse inference; and that 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 B 
the Constitution. 
Respondent-husband contended that matrimonial Court is required 
to arrive at a finding as to whether the appellant had been suffering from 
unsoundness of mind, by virtue of Section 5, 12(1) and 13(1) of the Act; 
that as the state of mind of a party to the marriage may render the C 
marriage voidable, court is entitled to take expert's opinion in this behalf; 
and that exposure to medical examination aided by scientific data would 
not infringe the right to personal liberty under Article 21. 
Dismissing the appeal, the Court 
HELD: 1.1. A matrimonial court has the power to order a person 
to undergo medical test. However, the Court should exercise such a power 
if the applicant 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 himself to medical examination, the court will be entitled 
to draw an adverse inference against him. [142-C-E[ 
1.2. For the purpose of grant of a decree of divorce what is necessary 
D 
E 
is that the petitioner must establish that unsoundness of mind of the 
respondent is incurable or his/mental disorder is of such a kind and to 
such an extent that he cannot reasonably be expected to live with her 
spouce. Medical testimony for arriving at such finding although may not F 
be imperative but undoubtedly would be of considerable assistance to the 
court. Such medical testimony being the evidence of experts would not 
leave the court from the obligation of satisfying itself on the point in issue 
beyond reasonable doubt. Relevance of a medical evidence, therefore, 
cannot be disputed. [ 116-B-D[ 
G 
I .J. 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. 
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. Having

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