M.R. Mody, J.
1. This is one of those unfortunate matters in which a relentless and obdurate attitude has been adopted by the relations or friends advising the petitioner with a view to reducing the opponent-wife to an apparently helpless situation. The petitioner before me is the husband of the opponent. The marriage of the parties took place at Ahmedabad as far back as on December 6, 1945. After this marriage the petitioner and the opponent lived and cohabited together as husband and wife. It is the opponent's allegation that after her marriage the petitioner at times behaved like an insane person. The conduct of the petitioner from which the opponent came to such a conclusion was from instances of his breaking window-panes, of his attempt to break doors, quarrels, etc. According to her, his sense of discrimination between good and evil, right and wrong became less and less as time went on and ultimately vanished. In 1949 she went for her delivery to Bombay to her father's place and at that time she was informed that the petitioner had run away and was not to be found. Subsequently, after he was found, his name and address had to be tattooed on his hand so that if he again went away he would be restored to the house. She also alleges thathe was treated by one Dr. Vahiya, a psychiatrist at Bombay who gave him electric shocks as and by way of treatment for his malady. Her allegation is that for the last 11 years the petitioner has been insane and this insanity has beenincreasing from day to day. On this allegation, the opponent filed a petition for dissolution of marriage under Section 13(1)(iii) of the Hindu Marriage Act, on the ground that the petitioner was incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. A written statement was filed by the husband, the petitioner in this petition before roe. This written statement is verified not by the petitioner himself but by the mother of the petitioner. The allegation that he behaved in an Insane manner was denied and it was also denied that he had run away. It was, however, admitted that the petitioner was treated in Bombay by Dr. Vahiya. It is stated that Dr. Vahiya's treatment was given to mm because his mental health was not good. It is further stated that this treatment did him good for some time, but that on account of shortage of time in the then circumstances, this treatment could not be fully taken and he had to be brought back to Ahmedabad. A complaint is made that the opponent never looked after the petitioner during his medicaltreatment and in spite of messages that the condition of the petitioner may become very delicate if she continued to neglect him, the opponent had not turned to Mm. It is also denied that the madness is incurable. This petition was originally filed in the Court of the learned Civil Judge, Senior Division, at Ahmedabad, and was numbered Hindu Marriage Miscellaneous Petition No. 68 of 1960. On the establishment of the City Civil Court at Ahmedabad, this petition was transferred to that Court and was numbered 721 of 1951.
2. On April 25, 1962, the opponent wife filed an application to the trial Court for an order for compulsory medical examination of the petitioner. It is stated in this application that to establish the incurable insanity of the petitioner as required by law, it was necessary to have a medical examination of the petitioner. The main questions on which the opponent desired medical opinion were: (a) Having regard is the symptoms and the condition of the petitioner and from his other examination, for how many years could the petitioner have been of unsound mind? and (b) whether such unsoundness of mind is incurable? It was submitted that this was very necessary for proof of the opponent's case alleged in her petition for divorce. This application came up before the learned trial Judge for disposal. The learned trial Judge held that it was necessary for the opponent to prove insanity as required by law but for that proof it was necessary to know whether the petitioner was a man of unsound mind and, if so, what was the nature of the insanity. This could only be done by examination of the person of the petitioner by a doctor. In his opinion, it would not be possible for the Court to determine the nature of the unsoundness of the mind of the respondent by puttingsame questions to him and, therefore, medical opinion was absolutely necessary. He accordingly held that the Court had inherent jurisdiction even in absence of a specific provision in the Civil Procedure Code to direct a medical examination of the petitioner by a doctor. He ordered thai the petitioner be subjected to examination by the Civil surgeon or a doctor named by him 'to determine the unsoundness of mind of the said Bipinchandra (i.e. the petitioner) and whether this unsoundness of mind' of the petitioner 'was curable or not'.
3. It was not desired by those who were the friendsand relations of the petitioner to submit the petitioner tomedical examination for ascertainment of the facts as ordered by the learned Judge. This revisional application was thereupon filed on behalf of the petitioner to this Court for setting aside the order for medical inspection passed by the learned Judge. At the hearing of this petition, Mr. Shan, the learned advocate appearing on behalf of the petitioner contended that the learned Judge had no jurisdiction to pass an order to compel medical examination of the petitioner. He submitted that there was no provision either in the Hindu Marriage Act or under the Code of Civil Procedure (which is made applicable to petitions filed under the Hindu Marriage Act by Section 21 thereof), under which it would be open to the Court to compel a party to be medically examined for whatever purpose.
4. He first drew my attention to a judgment of the Madras High Court reported in P. Venkataswarlu v. P. Subbayya : AIR1951Mad910 . That was a case in which legitimacy was in issue and a blood test was sought by one party to establish paternity. It was held that Section 151 was introduced to give effect to the inherent powers of the Court but that such powers could only be exercised ex debito justitiae and not on the mere invocation of the parties or the mere volition of the Courts and it was stated that there was no procedure either in the Civil Procedure Code or the Evidence Act which empowered the court to pass an order to submit any party to a blood test.
5. My attention was next drawn to a judgment of the Andhra Pradesh High Court in P. Sreeramamurthi v. P. Lakshmikantham, (S) AIR 1955 Andhra 207. In that case the application arose in a queer way. It was a suit for partition in which one of the parties was a lady and it was sought to be proved that three or four years before, she had given birth to a child while she was a widow, which tantamounted to unchastity resulting in certain consequences on her right in the properties. An application was made that she should be medically examined to find out whether she had given birth to a child. Reliance was placed in that case on Section 14 of the Evidence Act which made the existence of any state of body or mind a relevant tact and it was contended that the party was entitled to lead evidence to show that the lady was enceinte after her husband's death. It was not disputed that the state of her Body would be a relevant fact but what was disputed was that there was no provision of taw under which such a medical examination could be imposed upon any party. On behalf of the lady it was contended that such an examination, if ordered, would offend the provisions of Article 21 of the Constitution which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Relying on observations mane by the Supreme Court in A. K. Gopalan v. State of Madras : 1950CriLJ1383 , to the effect that an individual can be deprived of his life or personal liberty only by action of the State either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law, it was held that there must be some statutory provision under which It would be open to the Court to compel medical examination of a party thus restricting the enjoyment of personal liberty of that person. It was pointed out that in a case such as the one before them, it was not right to rely upon the general or inherent jurisdiction of the Court under Section 151 of the Code of Civil Procedure. It was also pointed out that the oral examination of a party as a witness was warranted by the Code of Civil Procedure and even medical examination in certain cases was specifically provided as under the terms of the Indian Lunacy Act. Following this line of reasoning.
It was held that in the absence of any such provisions, it was not open to a party to compel the other party to undergo medical examination. With the greatest respect agree with the observations made and the reasoning followed in the Andhra case. These observations, inasmuch as they apply to the case arising before the learned Judge in that case, apply with equal force to a case arising under the Hindu Marriage Act. There is no provision under the Hindu Marriage Act or the rules framed thereunder, or in the Code of Civil Procedure, or the Indian Evidence Act or any other law which has been brought to my notice which would show any power in the Court to compel any party to undergo medical examination. A compulsion to undergo medical examination is certainly an interference with the personal liberty of a citizen and such personal liberty could only be interfered with under the provisions of any penal enactment or in the exercise of any other coercive process vested in the Court under the law as observed by Their Lordships of the Supreme Court in A. K. Gopalan's ease : 1950CriLJ1383 .
6. Miss Shah, the learned advocate appearing on behalf of the opponent, however, contended that medical examination by a doctor for the purpose of ascertaining the presence or absence of an incurable mental malady was not 'by any stretch of imagination' an interference with me body as it could be said to have been in the two cases cited by the other side. She argued that whereas in tne Madras case it was necessary to extract blood for the purpose of having a blood test, in the Andhra case it was necessary to interfere with the person of the lady to find out what was alleged. According to her, a mere medical examination for the purpose of ascertaining insanity would not, in any way, interfere with personal liberty because, as she put it, 'it is only that the doctor has to look at me person and to opine whether he is sane or insane.' I find it very difficult to accept this argument. Medical examination for ascertaining the presence or the extent of insanity, even if it be by mere questioning, is as much interference with personal liberty as a real physical interference such as the drawing of blood or the personal examination of the body as in the other cases. I see no difference in principle in these cases.
7. But Miss. Shah then relied on a case reported in Mahomed Ibrahim v. Mohammad Marakayar, AIR 1949 Mad 292, where it was held that when the question of unsoundness of mind of the plaintiff arises not only under Order 32 Rule 15 but also as a substantial issue in the suit, the Court has ample jurisdiction to inquire into the question whether the plaintiff is really by reason of the unsoundness of mind or mental infirmity incapable of protecting his interests. Now, this is an entirely different state of affairs. In the case cited, it was a question of the unsoundness of the mind of the plaintiff and the Court had to find out whether the Court would allow him to conduct the proceedings, or appoint somebody else to look after his interest and it was pointed out that it was always for the Court before which the matter came to be decided whether the plaintiff was capable of managing his own interest. That is not so in a case where it is alleged by a petitioner in a matrimonial petition that respondent is suffering from incurable unsoundness of mind. It is for the petitioner in such a case to establish such unsoundness of mind. It does not there become incumbent on the Court to find out whether the respondent is capable of taking care of his matrimonial home. That case, therefore, has no application to the facts of the case before me.
8. My attention was drawn to another decision in V.Narasamma v. V. Rama Naidu : AIR1951Mad648 . That was a case, however, under the Lunacy Act where there is power in the Court to direct a medical examination. That case can hardly be of any assistance to me.
9. Miss Shah then fell back upon a Division Bench Judgment of the Calcutta High Court in Birendra Kumar v. Hemlata Biswas, AIR 1921 Cal 459. Apart from the fact that this judgment is a judgment long before the Constitution, this case does not specifically consider or lay down that it would be open to a party under a Court's order to have the other side compulsorily medically examined. What the learned Judges were there considering was a case of syphilis. They observed that the Courts exercise wide discretion in ordering physical examination and always do so, subject to such conditions as will afford protection from violence to natural delicacy and sensibility. It is very relevant to observe that in that case the party concerned did not object to a proper medical examination. It appears that the case followed on a concession. That apart, their Lordships relied on certain English cases which are cases concerning themselves with an allegation of impotency or incapacity. These English cases can have no application in this country to a case arising under the Hindu Marriage Act, because, under the Matrimonial Causes Rules in England specific provision has been made for examination by medical inspectors. There is no such provision in our country regarding the appointment of medical inspectors so that the Calcutta case cannot either be of any assistance to Miss Shah. In my judgment, the order passed by the learned Judge was in excess of jurisdiction and is liable to be set aside.
10. Miss Shah then argued that in a case like this where the law requires the suing spouse to prove incurable unsoundness of mind for a continuous period of not less than three years immediately before the presentation of the petition it would be difficult for such party so to prove it in the absence of expert medical evidence. Miss Shah submitted that the refusal in a case like this renders it impossible for a petitioning spouse to prove his or her case. The fact that a party with ulterior motives adopts an obdurate and relentless attitude, however, cannot and does not render the Courts helpless to counteract it. Section 114 of the Indian Evidence Act provides for the presumption by the Court regarding existence of facts, illustration (g) to that section is to the effect that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This illustration is merely an illustration of the principle embodied in that section. This illustration is based on the well-known maxim omnia praesumuntur contra spoliatorem. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be raised against him. This section, amongst other things, enables the Court to draw an adverse inference against a party who refuses to produce a document in his possession. The wording of this section enables the Court to draw a presumption against a person who can make evidence available to the Court but obstructs the availability of such evidence. The question is: Can an adverse inference or presumption be drawn against a party who refuses to submit to a medical examination in a case where the whole case depends on the state of his mind and body? It appears to me that in such a case it win be open to the Court to draw an adverse inference or presumption against the recalcitrant party. Such a party is on a par with a party who wrongfully withholds evidence in his possession, I am indeed indebted to Mr.Shah for drawing my attention to a judgment of the Madras High Court in Ranganathan Chettiar v. Chinna Lakshmi Achi : AIR1955Mad546 , where it was held that it was not open to a Court to invoke Section 151 of the Code of Civil Procedure for ordering a medical examination of a party against the consent of such party. Having so held, the learned Judge observed that the Court might draw any adverse inference against a party who refuses to examine himself or herself. Even in the Calcutta case it was observed that when a party refuses to attend for medical inspection, the Court may properly draw an unfavourable inference, it was contended on behalf of the petitioner that it would be improper to draw an unfavourable inference against the party who refuses to submit to an order for medical examination made in excess of the jurisdiction of the Court or, in other words, it would be wrong for a Court to draw any adverse inference against any party who refuses to submit to an illegal order. That indeed would be correct. No adverse inference can be drawn for refusing to submit to an illegal order. The adverse inference that may be drawn by any Court is from the circumstances in each case and having regard to the refusal to let the best evidence being brought before the Court.
13. In this view of the matter the petition succeeds.In the peculiar circumstances of the case, I think that theproper order for costs should be that there should be noorder for costs. Rule absolute.