Piyush Mathur, J:

1. A Post-Graduate Lady, who has to her credit a Masters Degree of Science in Botany, has questioned the legality of an Order passed on Date 20.03.2009 by the Family Court in Case No.74-A/07/HMA (Ajaykant Sharma v. Smt. Alka Sharma), whereby the Family Court has ordered her to undergo 2 Medical-Examination, on the strength of the oral submissions/pleadings of her Husband that she suffers from some mental disorder (without there being any previous Medical History or Treatment Record) while taking a ground of the Wife being of unsound mind in Terms of Section 13 (1) (iii) of the Hindu Marriage Act, 1955.

2. The Writ Petitioner Smt. Alka Sharma was married with Respondent-Ajaykant Sharma on Date 16.05.2005 and a Male Child was born out of the wedlock, in the Year 2006, whereafter sudden disputes arose between the Spouse, which resulted in filing of a variety of proceedings before the Family Court, which include Wife's petition seeking maintenance under Section 125, Criminal Procedure Code (M.Cr.C.No.242/07) and the present proceeding initiated by the Husband Ajaykant Sharma under Section 12 or in the alternative under Section 13 of the Hindu Marriage Act, for seeking declaration of Marriage to be void, on the ground of cruel behaviour of Wife, due to her suferring from serious mental disorder.

3. Miss. Sudha Dwivedi, Learned Counsel for the Petitioner(Wife) submits that the Family Court has completely erred in passing the impugned Order Dated 20.03.2009, whereby the Court has allowed an application preferred under Section 45 of the Indian Evidence Act, for examining the mental condition of the Petitioner, even though an application of a similar nature, was dismissed by the Family Court on the previous occasion, by completely ignoring the fact that no evidence or document exists on record to prima-facie connect the mental disorder, with the otherwise mentally sound person/ petitioner. Miss Sudha Dwivedi further submits that the Petitioner is a Post-Graduate in Science (Botany) from Jiwaji University and soon after her marriage, the demand of dowry was raised and the Husband and his Family Members began torturing and harassing her to an extent that her temperament has been adversely affected, however, the same could not be even presumed to be a case of mental disorder or mental derailment/derangement.

4. Shri V. K. Bharadwaj, Learned Senior Advocate appearing on behalf of the Husband Ajaykant Sharma submits that when the Petitioner was examined by the Family Court in proceedings initiated under Section 125, Criminal Procedure Code , her conduct surfaced in the statement, which is sufficient enough to believe the mental status of the Petitioner, requiring her to be medically examined by the Competent Doctors. He read over several portions of the statement of the Petitioner (submitted as Annexures R/1 and R/2) to demonstrate that the Petitioner is one such person, who could not be treated to be a person possessing normal mental faculty and as such the Court has rightly considered the application and correctly exercised the jurisdiction of ordering for medical examination of the Petitioner. Shri Bharadwaj has also relied upon an application filed before J.M.F.C.,Gwalior, seeking adjournment, on account of absence of the Petitioner, where a categorical fact of her going for treatment to Bombay was made by her Counsel about the absence of the Petitioner as also a declaration made by the Petitioner herself in writing (Annexures R/4, R/5 and R/6), to demonstrate that the Petitioner has admitted that she was undergoing some medication in the past two years. For ready reference, the contents of these documents are quoted herein below;

Reg. Cause of Absence :

Languge

5. We have heard Miss Sudha Dwivedi, Learned Counsel for the Petitioner, Shri V.K. Bharadwaj, Learned Senior Advocate for the Respondent and have also perused the documents annexed with the pleadings of the Parties and have carefully examined the same.

6. Ms. Sudha Dwivedi, Learned Counsel for the Petitioner submits that a Divorce Petition filed by the Husband demonstrate that his Wife was suffering from mental disorder before the marriage and on account of hatching of conspiracy, the marriage was solemnized by keeping him in dark and as such the marriage is void/voidable from the date of its solemnization. She further submits that no Medical Board can examine about the existence of the ailment in the past as the duration of the illness is un-ascertainable and the Medical Science can only ascertain the present condition of the Patient and on this ground, no divorce can be granted. Ms. Dwivedi submits that a decree of annulment of marriage cannot be given by ascertaining the present ailment of the Wife because the Law requires that the mental disorder should be existing at the time of the marriage and the relevant evidence of that time alone would be relevant and important for granting a decree of divorce. Learned Counsel for the Petitioner further submits that a Psychiatrist cannot assess the past ailment of a Patient in absence of medical papers or prescriptions and since the Wife has never been treated by any Psychiatrist or a Medical Doctor in the past, no Expert opinion could be given about the past ailment of the Wife. Ms. Dwivedi, Learned Counsel submits that the Husband has narrated in his reply to the Application filed under Section 125 of Criminal Procedure Code that he is less educated than his Wife, who is having M.Sc. Degree in Botany and since there was a continuous demand of dowry right from the date of the marriage, due to which the Wife was subjected to a great torture at home, she had definitely undergone a great mental stress, which has adversely affected her behaviour, but has not converted her into a person having psychosomatic disorder. It is further contended by her that soon after the delivery of a Baby Boy on Date 03.02.2006, the Husband has taken away the Child from the custody of the Wife on Date 17.02.2006, whereas, the Wife was discharged from the Hospital on Date 20.02.2006, merely with a view to harass the Wife and in this background, the degree of harassment should be assessed. The major thrust of the argument of the Learned Counsel for the Petitioner revolves around the fact that the Husband should have collected the relevant oral and documentary evidence about the ailment of the Wife and should have led evidence before the Family Court, for satisfying the Court that there exists sufficient material for subjecting the Wife to the examination by Medical Board (consisting of Medical Experts and Psychiatrists) and in absence of such evidence, the Court below has seriously erred in ordering for the constitution of the Medical Board for subjecting the Wife to undergo the examination. Lastly, she submits that the Husband is creating, rather building evidence against the Wife by subjecting her to Medical Board and since the Husband happens to be an Influential Person, he may adversely affect the finding of the Medical Board by ruining the life of his Wife, as a final tool of harassment.

7. Shri V. K. Bharadwaj, Learned Counsel for the Respondent submits that the marriage was solemnized on Date 16.05.2005 and within one year, an Application under Section 13 of the Hindu Marriage Act was filed by Husband before the Court on Date 15.05.2006 on account of a serious mental disorder of the Wife. He submits that when the Legislature has conferred a right to a Spouse, for proving before the Family Court that his Wife suffers from a serious mental disorder, she could be certainly subjected to the Medical Examination, without infringement of her 'Right to Privacy', because the legal plea of unsoundness of mind could alone be proved by leading evidence as also by subjecting the concerning Spouse before the Medical Board for obtaining a conclusive opinion about the un-curable state of mind of the Petitioner. Shri V.K. Bharadwaj submits that even Order 41 Rule 27 of Civil Procedure Code permits such Scientific Investigations, which are relevant for the just decision of the case and further Section 12 of the Family Court Act provides for the assistance of the Medical Board, therefore, for ascertaining the past and present mental status of the Wife, it is necessary that she is subjected to the Medical Examination.

8. Ms. Sudha Dwivedi, Learned Counsel for the Petitioner relies upon a Judgment of this Court reported as 1981(I) MPWN 12, Shakuntalabai v. Omprakash to demonstrate that a person, who is having a weak intellect, cannot be treated to be a person suffering from mental disorder. This is a Judgment, which is based on the strength of the opinion of a Medical Expert, who had examined the Patient/Spouse, whereafter alone this Court has given its finding, whereas the present matter deals with the scope of the power of the Court in passing an Order for subjecting a Spouse to undergo Medical Examination, therefore, this Judgment does not advance the cause at all. While advancing the submission about the nature and evidentiary value of the medical opinion, Ms. Sudha Dwivedi, Learned Counsel for the Petitioner relies upon a Judgment of the Supreme Court, cited by her as 2001 (II) MPWN 147 (SC) Hansraj @ Hansu Shankar Gaud v. State of Maharashtra to demonstrate that the medical evidence is only an opinion and it can hardly be decisive in nature and cannot discredit duly corroborated testimony of a witness. This Judgment also, in the facts of the present case, throw no light on the question sought to be adjudicated upon in the present matter.

9. While advancing the submission about the nature and extent of the unsoundness of mind, Ms. Sudha Dwivedi, Learned Counsel for the Petitioner, has cited a Judgment of Madras High Court reported as AIR 1975 Madras 285, R. Lingaraj and Others v. Parvati, wherein the Single Judge of the Madras High Court while analyzing the provisions of Lunacy Act, 1912, has observed that the unsoundness of mind of a person is one stage, which make him totally unsuited to manage himself and his affairs and such incompetency is directly referable and attributable to the incapacity of his mind. The Court has further analyzed the effect of the inability of a witness to answer the questions relating to a particular sign/system of measurements by finding that the incapacitation of such faculty would not be a sign of unsoundness of mind. This Judgment of the Madras High Court has taken into consideration a Judgment of the Allahahad High Court, which is reported as AIR 1949 Allahabad 449 Joshi Ram Krishan v. Mst. Rukmini Bai, wherein the Allahabad High Court, while examining the provisions of Lunacy Act, has found that an Order declaring a person to be of unsound mind and incapable on that account of managing his affairs, is an order of a very serious character, because it has an effect of disqualifying him from using his own property in the manner he desires and placing a drastic check on his rights and privileges which, as a normal individual he would be entitled to enjoy. Here also the Court, while evaluating the effect of the failure of a person in making arithmetical calculations, has found that the person would not be of unsound mind and incapable of managing affairs. Both these Judgments cited at the bar are based on a sound medical opinion given and obtained during the course of hearing of those matters, but here is a case where the necessity of subjecting the Spouse to the Medical Examination alone has been placed in the forefront and as such these judgments, except for laying down broad principles on those topics, could not render any assistance to the Petitioner, for propounding her submissions.

10. Shri V. K. Bharadwaj, Learned Senior Advocate appearing for the Respondent-Husband has relied upon a Judgment of the Supreme Court reported as (2003) 4 SCC 493, Sharda v. Dharmpal to demonstrate that the Supreme Court has analyzed the scope of the legal right available to a Spouse in a matrimonial dispute qua his 'Right to Privacy' and has found that when Section 13 (1) (iii) of the Hindu Marriage Act specifically provide for the ground of obtaining a Decree of Divorce on the ground of mental disorder, it could not be said that no Spouse can be subjected to a Medical Examination as the same would constitute violation of his Fundamental Right or the Right of Privacy, as recognized by Law. Shri V. K. Bharadwaj, Learned Senior Advocate submits that when the Legislature has conferred such a right to the Spouse for not only leading evidence on the issue of the Spouse being suffering from mental disorder, but also to conclusively convince the Family Court about the existence of such decree of mental disorder, which had made the matrimonial life so miserable that it has become impossible for the Spouse to live together. Shri V. K. Bharadwaj, Learned Senior Advocate submits that even though the Husband is not having any Medical Prescription or Document in his possession for establishing the previous history of mental disorder, however, looking to the existing mental framework of the Wife, the Medical Examination would be the only method of proving a fact and as such, it would neither be an attempt on the part of the Husband to create evidence nor to collect the evidence by subjecting Wife for her examination by the Medical Board consisting of Expert Doctors and Psychiatrists.

11. Shri V. K. Bharadwaj has also relied upon an Unreported Judgment of the Supreme Court, passed in Civil Appeal No.5077/09, Lalit Kishore v. Meeru Sharma & Another, wherein the Supreme Court, while relying upon the case of Sharda v. Dharmpal (Supra), has observed as follows ;

"3. .......It is true that the Hindu Marriage Act or any other law governing the field does not contain any express provision empowering the court to issue direction upon a party in a matrimonial proceeding to compel him to submit herself/himself to a medical examination. But, in our view, it does not preclude the court from passing such an order. The court is always empowered to satisfy itself as to whether a party before it suffers from mental illness or not either for the purpose of taking evidence on the ground for which the matrimonial proceeding was started. It is well settled that the primary duty of the court is to see that the truth comes out."

12. Shri V. K. Bharadwaj, Learned Senior Advocate has referred to a Division Bench Judgment of the M.P. High Court reported as 2004 (3) MPHT 40 (DB), Smt. Seema Arora v. Dinesh Kumar Arora to demonstrate that when a Spouse failed to establish the extent and degree of the mental unsoundness of mind (mental disorder), the Division Bench has found that sufficient evidence about the extent and degree of the mental disorder has not been placed on record by adducing adequate evidence and while relying upon this Judgment, Shri V. K. Bharadwaj, Learned Senior Advocate submits that in case the Petitioner(Wife) is not subjected to Medical Examination, the Respondent (Husband) would be found to be lacking in establishing the ground of divorce in terms of Sections 12 and 13 (1) (iii) of the Hindu Marriage Act. He submits that even Section 12 of the Family Courts Act provides that the Family Court shall be free to secure the services of a Medical Expert, whereafter, there should be no difficulty in searching for the power of a Family Court to order for examination of a Spouse. He also relied upon the bare provisions of Order 41 Rule 27 of Civil Procedure Code to demonstrate that even at the Appellate stage of the proceedings, the Supreme Court and this Court have been permitting entertainment of evidence as also by permitting scientific investigation and since the mental status of the Wife could only be assessed by subjecting her to the appropriate examination by the Medical and Psychiatric Experts, the Family Court was justified in allowing the application and directing the Wife to appear before the Medical Board.

13. Since the present matter deals with the issue of "mental disorder" and the availability of the ground of "mental disorder" for securing Divorce under Section 13 of the Hindu Marriage Act, therefore, the relevant extract of the Text of Section 13 of Hindu Marriage Act is quoted herein below;

"13. Divorce. (1) Any marriage solemnized, whether before ore after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissoslved by a decree of divorce on the ground that the other party-

(i) xxx xxx xxx

(ii) xxx xxx xxx

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.- In this clause, -

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" mans a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or"

14. While considering the oral submissions of the Counsels for the Petitioner and the Respondent, this Court has observed from the perusal of the Impugned Order that the Family Court has not taken into account a very important aspect of the matter that there exists no previous history of the alleged ailment/mental disorder of the Wife and no Medical Prescription or Medical Record was produced by the Husband and in absence of these Documents, merely on the strength of the plain averments of the Reply/Written-Statement of the Husband, it was difficult for the Court to draw inferences about the correctness of the allegations of the Husband, for prima-facie reaching a conclusion about the necessity of ordering for the Medical Examination of the Wife, more particularly when no Affidavits of independent witnesses were filed, in support of the aforesaid allegations/submissions on behalf of the Husband, but it seems that in view of the solitary conduct of shouting by the Wife in Court, at the time of the recording of the statement had influenced the mind of the Family Court for drawing an impression that the Lady is suffering from some mental disorder. Had this been the impression of the Court, the Family Court could itself should have felt the necessity of collecting the evidence, with a view to satisfy itself about the mental condition of the Wife, but a perusal of the Order nowhere strengthen this belief that the Court has permitted the Medical Examination of the Wife for satisfying itself about the mental disorder of the Petitioner.

For ready reference, the Order passed in Maintenance Proceedings and the impugned order are quoted herein below;

Order in Maintenance Case :

Language

15. The entire pleadings placed before us on behalf of the Husband and Wife demonstrate that the marriage was happily solemnized and continued uptill the birth of the Male Child and the dispute arose only after the birth of the Male Child when the Husband, on one pretext or the other, took away the newly born Baby Boy from the Hospital Bed itself within a short period of 10 days, even before the discharge of the Wife (Mother of the Child), while advancing a peculiar story that the Wife was not interested in taking care of the newly born Baby. The Wife has negatived all these averments during her examination in the Court and has categorically stated that the demand of dowry made from the date of the marriage was blown out disproportionately during the matrimonial relationship and that the same was bursted out soon after delivery of the Baby Child and the Wife was subjected to the harassment and cruelty by the Husband by snatching away the newly born Child from the custody of the mother, without there being any element of mental disorder, subsisting at that point of time.

16. The pleadings of the parties demonstrate that the Husband has made oral averments about the self administration of drugs by the Wife and concealment of the factum of she being suffering from some disease (not known or disclosed to the husband at the time of the marriage) which had strengthened the belief of the Husband that the Wife is undergoing some medication which has direct connection with her mental condition, whereas the Wife has denied about taking any such medicines relating to the mental disorder, while admitting the fact that she was consuming some medicines relatable to minor ailments like cold and cough and certainly this cannot be treated to be a circumstance creating an impression in the mind of the Court, to warrant appointment of a Medical Board for subjecting the Wife to the Medical Examination, for no known ailment/disorder.

17. This is not a case where the Wife is an illiterate, uneducated or rustic Lady, who does not understand the fineries of life as she has very categorically understood and answered the question put to her during the course of the examination before the Family Court and if her answers are making her Husband uncomfortable or even making the Court (or the Presiding Officer of the Court) slightly uncomfortable, it cannot by itself become an illustration, adequate enough to show that the Wife is suffering from a mental disorder which requires her examination by the Medical Experts. For ascertaining the soundness of mind and understanding of all related questions, the entire Text of her statement recorded by the Family Court is quoted herein below;

Language

18. From a perusal of the entire statement, it emerges that when the Lady was subjected to a lengthy cross-examination, she very frankly gave answers to the incriminating questions clarifying her perception about her life, therefore, it could not be inferred that the Wife was, in any manner, unable to understand the nature of the question or the nature of the proceedings, however, she could, at best, be lebelled as a bold witness, who was having no fear in her heart, at the time when she was examined and cross-examined, before the Family Court, therefore, a person cannot be punished or subjected to a Medical Examination merely on account of his/her boldness or promptness in giving answers in a Court of Law. This demeanour of the witness was wrongly appreciated by the Family Court when the Court recorded its proceedings on Date 05.09.2009 that the Petitioner/Wife was shouting loudly in the Court. Therefore, the observation of the Family Court, based upon enraged conduct of the Wife, after stressful cross-examination in the Court, could not be treated to be such aberration, which could warrant appointment of a Medical Board for examining the Wife against the charge of suffering from "mental disorder".

19. The Judgment of the Supreme Court reported as (2003) 4 SCC 493, Sharda v. Dharmpal has taken into consideration the legal right of the Spouse for securing Divorce under Section 13 (1) (iii) of the Hindu Marriage Act, 1955, wherein the Court has also affirmed the action of the Court in subjecting the Spouse to undergo the Medical Examination, (while also analyzing the provisions of the Mental Health Act, 1987), however, the Supreme Court has also laid down that this power has to be exercised in relation to such cases alone where there exists a strong prima-facie evidence to order for the Medical Examination regarding mental disorder of the Spouse (and not for giving a tool in the hand of the husband to abuse the process of Law). The relevant Paragraphs of the Supreme Court Judgment are quoted herein below ;

"32. Yet again the primary duty of a Court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Civil Procedure Code and the Evidence Act, has an inherent power in terms of Section 151 of the Civil Procedure Code to pass all orders for doing complete justice to the parties to the suit.

.....................

50. We wish to point out that the question as to whether a person is mentally ill or not although may be a subject-matter of litigation, the court having regard to the provisions contained in Order 32 Rule 15 of the Civil Procedure Code, Section 41 of the Indian Lunacy Act as also for the purpose of judging his competence to examine as a witness may issue requisite directions. It is there not correct to contend that for the aforementioned purposes the court has no power at all. The prime concern of the Court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to a test which would invade his right of privacy and may in some case amount to battery; but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined y a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests.

51. If the court for the purpose envisaged under Order 32 Rule 15 of the Civil Procedure Code or Section 41 of the Indian Luancy Act can do it suo motu, there is no reason why it cannot do so on an application filed by a party to the marriage.

52. Even otherwise the court may issue an appropriate direction so as to satisfy itself as to whether apart from treatment he requires adequate protection inter alia by way legal aid so that he may not be subject to an unjust order because of his incapacity. Keeping in view of the fact that in a case of mental illness the court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the court may take recourse to such a procedure even at the instance of the party to this lis.

53. Furthermore, the court must be held to have the requisite power even under Section 151 of the Civil Procedure Code to issue such direction either suo motu or otherwise which, according to him, would lead to the truth."

20. Since the Wife in the present proceedings happens to be a Science Post-Graduate in Botany and from a perusal of her statement, she could be treated to be well educated Lady, who knows the implications of life, whereas there is a husband on the other side, who remained silent for a long one year after solemnization of the Marriage and started complaining about the mental derailment of his Wife only after the birth of his Baby Boy, it nowhere suggests even on a prima-facie perusal of the entire evidence that the Wife is suffering from such mental disorder, which warrant her examination by the Medical Board or Psychiatrist, before the collection of independent and reliable oral evidence, suggesting its initial existence.

21. The famous Author Sigmund Freud in his classic work "The Origins of Psyco-Analysis (1950)" has propounded a variety of mental and psychosomatic disorder by classifying the habits and behaviourial patterns to demonstrate the extent and degree of mental derailment/derangement and for ascertaining the extent of mental disorder, the present Psychiatrist working in the related fields have found that at times when a person gets shocked due to sudden impact of a circumstance, it causes depression or derailment of her mental faculties either momentarily or permanently and if the same do not come in the way of performing matrimonial obligations by the Spouse or if the mental condition is not such that it becomes difficult for the other Spouse to perform his/her matrimonial obligations, the Spouse could not be straightaway subjected to her examination by a Medical Board, for collection of evidence, without any known previous history of ailment.

22. Since the Husband has made an application under Section 45 of the Indian Evidence Act for subjecting his Wife to the Medical Examination by the Medical Board (which may consists of Medical Expert and Psychiatrist), it may certainly offend the legal right of an otherwise capable Wife, (so proved during her examination/cross-examination), who is of sound mind and capable to understand the nature of question and the effect of giving correct/incorrect answers and if some of the demeanour of the witness has been found to be unworthy of a quiet and subdued Wife, this aberration deserves pardon and not punishment by way of subjecting the Wife to an unnecessary examination by the Medical Board . This may not offend a litigant's right of defending herself and it would certainly not curtail the right of a Husband in establishing a ground for securing divorce, but it would certainly offend the fundamental human values, which would be demeaning the personality of an individual and the dignity of a person, who would be unnecessarily subjected to such an examination/test, for which she had not consented or volunteered herself.

23. While analyzing the scope of the power of the Civil Court to pass an order for subjecting a Spouse to the Medical Examination, even the Supreme Court in its aforesaid two Judgments Sharda v. Dharmpal (Supra) and Lalit Kishore v. Meeru Sharma (Supra) has found that the Hindu Marriage Act or any other Law of the Land, nowhere make an express provision, empowering the Court to issue direction to a party in matrimonial proceedings to compel her to submit herself to a Medical Examination and as such the impact of these two Judgments of the Supreme Court would be required to be ascertained in the peculiar facts situation of each case and merely on the strength of the observations given in the peculiar facts of these two Cases, it could not be treated to be automatically applicable to all the cases of dissimilar nature. With great respect to the Judgments of the Supreme Court, where adequate discretion has been given to the Courts, to apply the ratio deciding of these Cases, that the examination by the Medical Board has to be ordered in the peculiar facts and circumstances upon having strong prima facie case and not merely on the basis of the whims of a Spouse and since there exist no strong prima facie case about "mental disorder" of Wife, We have no hestitation in observing that We do not approve the Order of the Family Court.

24. It would not be out of place to mention a latest decision of the Supreme Court reported as (2009) 9 SCC 1, Suchita Srivastava & another v. Chandigarh Administration, where the Supreme Court while dealing with the issue of consent of a mentally retarded Pregnant Woman, has found that a Woman's right to make "reproductive choices" is also a dimension of "personal liberty" as understood under Article 21 of the Constitution, wherein the Court has observed that the reproductive choices can be exercised to procreate as well as to abstain from procreating and "the crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected.". This Judgment would not be a Judgment throwing light on the subject at hand; nonetheless it carves out of a distinction based upon the woman's right to privacy, d

ignity and bodily integrity, which needs to be respected throughout and unless the circumstance so warrant, the same should not be violated, on account of merely an interpretation of the provision of Law, which could curtail the legal and fundamental rights, attached with the serenity and dignity of the womanhood. 25. Therefore while analyzing the factual and legal background of this case as also while considering the Judgment of the Courts, We are of the view that there was no requirement or necessity in the present case for the Family Court to have ordered for the Wife to undergo the Medical Examination, for ascertainment of the existence of the mental disorder or even for ascertainment of the "extent or degree" of the mental disorder, as in both the Proceedings pending under Section 125 of Criminal Procedure Code and Sections 12 and 13 of the Hindu Marriage Act, the Petitioner-Wife has ably demonstrated that she is a Lady of sound mind, having complete knowledge and control of the delicacies of the life and she could not even be labelled as a person, suffering from such disorder of mind, which could warrant even examination by the Medical Board. 26. This Court while dealing with yet another matrimonial dispute in F.A.No.11/2010 (Smt. Alka Jain v. Akash Jain) has recently delivered a Judgment on Date 25.01.2010 wherein a Divorce Petition was filed by the Husband through his Father (Natural Guardian) on the ground of being deaf and dumb, where an application was filed by the Wife that without holding a Preliminary Inquiry, the Family Court should have not permitted the Husband (or his Father) to prosecute the proceedings, upon having no presumption in the eyes of the Law for his unsoundness of mind and this Court while referring to the Judgment of the Supreme Court in the case of Sharda v. Dharmpal (Supra) itself has felt the necessity of holding a Preliminary Inquiry about the ascertainment of the degree of deafness or dumbness for facilitating the Family Court to understand the nature of the incapacity of the Husband, in taking the protective umbrella of "unsoundness of mind". Therefore, while making departure from the earlier view expressed in a different set of facts (wherein the Wife herself has admitted that she has been married to a deaf and dumb Husband), we are taking a view in the present proceedings that the ratio, deducible from the Judgment of the Supreme Court in the case of Sharda v. Dharmpal (Supra) would not benefit the husband(respondent herein) because the pleadings and the statement of the Wife nowhere warrant issuance of orders, for subjecting her to be examined by a Medical Board. 27. Therefore, in view of the aforesaid Factual and Legal discussions, this Writ Petition succeeds and is allowed. Consequently, the impugned order passed by the Family Court on Date 09.06.2009, directing the Petitioner-Wife to appear before the Medical Board (for her Medical and Psychiatric examination) for ascertainment of the existence, extent and degree of mental disorder, is hereby set aside and the application filed by the Husband under Section 45 of the Indian Evidence Act is hereby dismissed. 28. The Family Court is directed to proceed further in the matter by allowing the Plaintiff and the Defendant to lead their respective evidence on all litigable issues, including the issue, relating to the mental disorder of the Wife, in terms of Section 13 (1) (iii) of the Hindu Marriage Act. The husband is directed to pay Rs. 2,500/- as costs of this litigation to his Wife.