IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 WP(C).No. 26761 of 2009(R) -------------------------- OP.124/2008 of FAMILY COURT, KASARAGOD .................... PETITIONER(S): --------------- A.V.PRADEEP KUMAR, S/O.A.K.KRISHNA PODUVAL, AGED 34 YEARS, TEACHER, RESIDING AT 'GETHALAYAM' VLIYAPOIL.P.O. THIMIRI VILLAGE, HOSDUG TALUK, KASARGOD-671313. BY ADV. SRI.MAHESH V RAMAKRISHNAN RESPONDENT(S): --------------- SINDHU.C.K., D/O.K.RAGHAVAN NAIR TEACHER, AGED 27 YEARS, TEACHER, RESIDING AT ERAMAM NORTH, ERAMAM VILLAGE, (VIA) PAYYANUR, THALIPARAMBA TALUK. ADV. SRI.M.V.AMARESAN FOR R1 SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(C).No.26761 of 2009 ---------------------------------------- Dated this the 14th day of October 2009 J U D G M E N T Basant,J The petitioner has come to this court aggrieved by Ext.P5 order passed by the Family Court. 2. The petitioner had gone before the Family Court with Ext.P1 application for a decree dissolving the marriage under Section 13(1)(ia) of the Hindu Marriage Act. Matrimonial cruelty is alleged. Inter alia it is contended in such petition that respondent/wife has been resisting sexual relationship and this amounts to cruelty. Before the Family Court, proceedings continued. The learned Judge of the Family Court, invoking his powers under Section 12, referred the respondent to a medical board. Medical Board conducted psychiatric as well as gynecological examination and evaluation. It was opined that the respondent does not suffer from any psychological ailment as is evident from Ext.P2. On gynecological examination it was found that the lady had polycystic ovarian disease. According to the petitioner, this would broadly support his allegation that the respondent was guilty of cruelty (in the sense that she resisted W.P.C No.26761/09 2 physical relationship) is correct and true. He, therefore, wanted the gynecologist, who is responsible for issue of Ext.P2, to be examined before court. That application was resisted. The learned Judge, by the impugned order Ext.P5, turned down the prayer of the petitioner for permission to examine the said expert. 3. The reason shown by the court below is that inasmuch as the respondent was referred to the expert not on the application of the parties; but by the court invoking its powers under Section 12, such evidence cannot be admitted. The court below appears to have felt that when a person is sent to a medical expert by the court in exercise of its powers under Section 12, such evidence of the expert cannot be adduced by the parties or relied on by them. 4. The learned counsel for the petitioner submits that this approach made by the court below is totally incorrect and unsustainable. The assistance of medical expert sought under Section 12 cannot be reckoned as counseling for which alone the protection under Rule 29 of the Family Courts Kerala Rules would apply. The learned counsel submits that, in any view of the matter, tangible evidence which was available before court in a report submitted by the medical expert, to whom respondent was referred under Section 12, cannot be shut out and the opportunity of the petitioner to adduce such evidence cannot be denied. W.P.C No.26761/09 3 5. We find merit in the contention of the learned counsel for the petitioner. We are unable to place our fingers on any principle or provisions of the Family Courts Act or Evidence Act in which reports of a medical expert secured under Section 12 can be held to be not cognizable by a court as evidence while disposing of the case. It is true that the parties were referred to the expert by the Family Court on its own to effectively discharge its duties as a Family Court under the Act. But admittedly, this was not done as part of the counseling proceedings. Admittedly, such course was resorted to by the court to enable it to come to a correct conclusion on the dispute before it. In the total absence of any provisions justifying the rejection of such evidence or the prayer to introduce such evidence, we are satisfied that the court below was not justified in not permitting the petitioner to adduce such evidence of the medical expert. 6. The learned counsel for the respondent contends that in any view of the matter (if not for the reason that the report cannot be introduced in evidence) on the ground that the evidence sought to be adduced is irrelevant, the impugned order deserves to be sustained. The court below has not taken such a stand. We do not want to delve deeper into that aspect or make any observations which may influence the learned Judge while considering the W.P.C No.26761/09 4 medical report and the evidence of the Doctor on its merits ; but we do take note of the nature of the averments and allegations made in paragraph 4 of the petition filed under Section 13 and we are of the opinion that it cannot be held by this court that the report of the medical expert and his probable evidence would be irrelevant. On that ground we find it impossible to support the impugned order. 7. We are, in these circumstances, satisfied that the impugned order warrants interference. 8. In the result, a) This writ petition is allowed. b) The impugned order is set aside. c) I.A.No.532/09 shall stand allowed and the petitioner shall be permitted to introduce Ext.P2 in evidence by examining the gynecologist concerned. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr W.P.C No.26761/09 5 W.P.C No.26761/09 6 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009