Holding

A matrimonial court may, under its inherent discretion (Section 151 CPC), order a medical examination of a party in divorce proceedings if a strong prima facie case exists, and such an order does not contravene Article 21.

Summary

The husband filed for divorce under Sections 12(1)(b) and 13(1)(iii) of the Hindu Marriage Act, seeking a court order that his wife undergo a medical examination to determine unsoundness of mind. The District Judge ordered the examination, the High Court dismissed the revision, and the wife appealed to the Supreme Court alleging lack of statutory authority and violation of her right to privacy under Article 21. The Court held that a matrimonial court, under its inherent power under Section 151 of the CPC, may order a medical examination when a strong prima facie case exists and sufficient material is before it; refusal to comply may invite an adverse inference. The Court further held that such an order does not infringe Article 21, as the right to privacy is not absolute and must yield to the public‑interest goal of adjudicating divorce on valid grounds. Consequently, the appeal was dismissed.

Issues considered

A. Whether a matrimonial court has the power to direct a party to undergo a medical examination.
B. Whether such a direction violates the right to personal liberty and privacy under Article 21 of the Constitution of India.

Legislation cited

Code of Civil Procedure, 1908s. 151, s. 75(e)
Constitution of Indias. Article 21
Hindu Marriage Act, 1955s. 12(1)(b), s. 13(1)(iii), s. 5
Indian Evidence Act, 1872s. 114
Mental Health Act, 1987s. 2(1)
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Subjects

divorcematrimonial proceedingsmedical examinationright to privacyArticle 21Section 151 CPCHindu Marriage Actunsound mindadverse inferencemental health

Judgment

A SHARDA
V.

DHARMPAL

MARCH 28, 2003

B [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, 1975.

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 -
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
D
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[ E
1.2. For the purpose of grant of a decree of divorce what is necessary
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 regard to
the complexity of the situation, the doctor's opinion may be of utmost H
108 SUPREME COURT REPORTS [2003] 3 S.C.R.

A importance for granting or rejecting a prayer for a decree of divorce. The
question is as to whether a mental disorder is curable can be subject matter
of determination of by a Court of Law having regard to the expert medical
opinion and particularly the ongoing development in the scientific and
medical research in this direction. I116-E, F; 118-CI

B l.4. Hindu Marriage Act, 195!i or any other law governing the field
do not contain any express provision empowering the Court to issue a
direction upon a party to a matrimonial proceedings to compel him to
submit himself to a medical examination. However, this does not preclude
a court from passing such an order. 1118-D, El
c In re: MB. (An Adult: Medical Treatment) (1997) 2 F.C.R. 541; St.
George's Healthcare N.H.S. Trust v. S. Regina v. Collins and Others Ex parte
S. (1998) 3 Weekly Law Reports 9:16, referred to.

S v. S, W. v. Official Solicitor (1972) AC 24: (1970) 3 All ER 107, W.
C v. W. (1963) 2 All ER 841 and B.R.B. v. J.B. (1968) 2 All E.R. - 1023,
referred to.

1.5. Although individuals have the right not to be subjected to
compulsory physical interventions and treatments but every measure
adversely affecting a person's physkal and moral integrity necessarily does
E not involve an interference with r1~spect to his private life. 1120-D, El

Costello-Roberts v. United Kingdom, (1995) 19 EHRR 112, referred
to.

Human Rights Law and Practice-Chapter 4; Evidence by Wigmore,
F Volume VIII, third edition; .Evidence by Phipson, 14th Edition, referred to.

1.6. In the event a court of law may find a person as disabled either
physically or mentally, an appropriate direction for his rehabilitation
having regard to Universal Declaration on the Rights of Disabled Persons,
1975, provisions of the Persons with Disabilities (Equal opportunities,
G Protection of Rights and Full Participation) Act, 1995, the National Trust
for Welfare with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 and other statutes, may be issued. (122-D, El

1.7. The Court has power to issue appropriate direction for
protection of human rights of mentally ill persons and to see to it that a
H
SHARDAv.DHARMPAL 109
person suffering from mental illness gets adequate protection In terms of A
the Mental Health Act, 1987. 1123-DI

Halsbury's laws of England, Volume 11, 4th Edition; Halsbury 'slaws
of England, Volume 17, 4th Edition, referred to.

1.8. Primary duty of a Court is to see that truth i~ 11rrived at. A party B
to a civil litigation, it is axiomatic, is not e11titled to constitutional
protection under Article 20 of the Constitutio11 of India. Thus, the Civil
Court although may not have any specific provisions in the Code of Civil
Procedure and the Evidence Act, has inherent power in terms of Section
151 of the Code of Civil Procedure to p11ss all orders for doing complete
justice to the parties to the suit. Discretionary power under Section •SI C
of Code of Civil Procedure, it b trite, can be exercised also on an
application filed by the party. 1123-H; 124-A·CI

Smt. Revamma v. Shri Shanthappa, AIR (1972) Mysore 157 and P.
Sreeramamurthy v. lakshmikantham, AIR (1955) Andhra 207, disapproved. D
1.9. In matrimonial disputes, the Court has also a conciliatory role
to play - even for the said purpose it may require expert advice. In certain
cases medical examination by the experts in the field may not only found
to be leading to truth of the matter but may also lead to removal of
misunderstanding between the parties. It may bring the parties to terms. E
Having regard to development in medicinal technology, it is possible to
find out that what was presumed to be a mental disorder of a spouse is
not really so. 1124-B, CJ

I.IO. Under Section 75(e) of Code of Civil Procedure and Order 26
Rule JOA the Civil Court has the requisite power to issue a direction to F
hold a scientific, technical or expert investigation. [124-DI

1.11. 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 32Rule15 of Code of Civil Procedure, G
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. If
the Court for the purpose envisaged under Order 32 Rule 15 of Code of
Civil Procedure or Section 41 of the Indian Lunacy 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. (128-F; 129-BI H
110 SUPREtvlE COURT REPORTS [2003] 3 S.C.R.
A 1.12. Even otherwise the Court may issue an appropriate direction
so as to satisfy himself as to whether apart from treatment he requires
adequate protection inter a/ia by way of legal aid so that he may not be
subject to an unjust order because of his incapacity. I129-CI

1.13. Keeping in view the fact that in a case of mental illness the
B Court has adequate power to examine the party or get him examined by
a qualified doctor in an appropriate case the Court may take recourse to
such a procedure even at the instance of the party to the lis. It is, however,
axiomatic that a Court shall not order a roving inquiry. It must have
sufficient materials before it to enable it to exercise its discretion. Exercise
C of such discretion would be subjected to the supervisory jurisdiction of
the High Court in terms of Section 115 of the Code of Civil Procedure
and/or Article 227 of the Constitution of India. Abuse of the discretionary
power at the hands of a Court is not expected. The Court must arrive at
a finding that the applicant has established a strong prima facie case before
passing such an order. If despite an order passed by the Court, a person
D refuses to submit himself to such medical examination, a strong case for
drawing an adverse inference would be made out. Section 114 of the Indian
Evidence Act also enables a Court to draw an adverse inference if the party
does not produce the relevant evidences in his power and possession.
(129-C, D; 141-G, H; 142-A, Bl

E Gautam Kundu v. State of West Ben~a/ and Anr.. 119931 3 SCC 418,
distinguished.

Birendra Kumar Biswas v. Hemlata Biswas, AIR (1921) Cal. 459-
approved.

F Bipinchandra Shanti/al Bhau v. Madhurihen. AIR (1963) Gujarat 250;
Shanti Devi 'V. Ram Nath, AIR (11972) P & H 270; P. A. Anbu Anandan v.
Sivakumari, AIR (1999) Madras 232; P. Sreeramamurthy v. lakshmikantham,
AIR 1955 Andhra 207; Snu. Nigamma and Anr. v. Chikkaiah and Anr.. AIR
2000 Kar. 50; G. Venkatarayan v. Kurupati laxmi Devi. AIR (1985) A.P. I;
G George Swamidoss Joseph v. Miss Sundari Edward. (1954) 67 Mad. LW 676,
referred to.

2.1. The implicit power of a court to direct medical examination of
a party to a matrimonial litigation in a case of this nature cannot be held
to be violative of one's right of privacy under Article 21 of the Constitution
H of India. (142-B, q
SHARDAv.DHARMPAL 111
2.2. With the expansive interpretation of the phrase "personal A
liberty", right to privacy has been read into Article 21 of the Indian
Constitution. But the right to privacy in terms of Article 21 of the
Constitution is not absolute right. If there were a conflict between
fundamental rights of two parties, that right which advances public
morality would prevail. 1130-A-DI
B
MP. Sharma. v Salish Chandra, AIR (1954) SC 297; Kharak Singh v.
State of U.P., AIR (1963) SC 1295; R. Rajagopal v. State a/Tamil Nadu and
Ors., AIR (1995) SC 264; People's Union ofCivil Liberties v. Union ofIndia,
1199711SCC301; Govindv. State of Madhya Pradesh and Anr., AIR (1975)
SC 1378; Mr. 'X' v. Hospital 'Z', 119981 8 SCC 296; Mr. 'X' v. Hospital C
'Z', 12003] 1 SCC 500; R. Raj Gopal v, Str;ite of Tr;imi/ Nadu and Ors., AIR
(1995) SC 264 and M Vijaya v. The Chairman, Singareni Collieries r;111d Ors.,
referred to.

R (on the application of S) v. Chief Constable ofSouth Yorkshire, (2003)
I All ER 148; Armando Schmerber v. State ofCalifornia, (384 US 757); Paul D
H. Brejthaupt v. Morris Abram, (352 US 432); Charles Joseph Kastigar and
Michael Gorean Stewart v. United Stmes, (US 32 L.Ed. 2d 212); Ma/thew
R., 113 Mc. App 701, 715. 688 A2d 955, 961; Zuniga v. Pierce, 714 F.2d
632 (1983) and Laznovsky v. Laznovsky 74.5 A,2d 1054 (Md. Ct. App. 2000),
referred to.
E
Halsbury 's Laws of England, Fourth Edition, Reissue, Volume 8(2);
Encyclopedia of the American Constitution, Volume 6 al page 2677, referred
to.

- 2.3. In matrimonial cases where divorce is sought, say on the ground
of impotency, schizophrenia ... etc. normally without there being medical
examination, it would be difficult to arrive at a conclusion as to whether
p

the allegation made by his spouse against the other spouse seeking divorce
on such a ground, is correct or not. In order to substantiate such allegation,
the petitioner would always insist on medical examination. If respondent
avoids such medical examination on the ground that it violates his/her right G
to privacy or for a matter right to personal liberty as enshrined under
Article 21 of the Constitution of India, then it may in most of such cases
become impossible to arrive at a conclusion. It may render the very
grounds on which divorce is permissible nugatory. Therefore, when there
is no right to privacy specifically conferred by Article 21 of the H
112 SUPREME COURT REPORTS [20031 3 S.C.R.

A Constitution of India and with the extensive interpretation of the phrase
"personal liberty" this right has been read into Article 21, it cannot be
treated as absolute right. What is emphasized is that some limitations on
this right have to be imposed and particularly where two competing
interests clash. In matters of aforesaid nature where the legislature has
B conferred a right upon his spouse to seek divorce on such grounds, it would
be the rights of that spouse which come in conflict with the so-called right
to privacy of the respondent. Thus the Court has to reconcile these
competing interests by balancing the interests involved. 1141-B-El

2.4. If for arriving at the satisfaction of the Court and to protect the
C right of a party to the lis who may otherwise be found to be incapable of
protecting his own interest, the Court passes an appropriate order, the
question of such action being violative of Article 21 of the Constitution of
India would not arise. The Court having regard to Article 21 of the
Constitution of India must also see to it that the right of a person to defend
himself must be adequately protect•~d. 1141-Fl
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5933 of2000.

From the Judgment and Order dated 17.11.1999 of the Rajasthan High
Court in S.B.C.R.P. No. 1414 of 1999.

E Naresh Kaushik, O.P. Arya. Ms. Shilpa Chohan, B.W. Dayal and Ms.
Lalita Kaushik, for the Appellant.

Ms. Nanita Sharma and Vivek Sharma, for the Respondent.

The Judgment of the Court was delivered by
F
S.B. SINHA, J. Whether a party to a divorce proceeding can be
compelled to a medical examination is the core question involved in this
appeal. This question arises out of a judgment dated 17.11.1999 passed by
the High Court of Judicature for Rajasthan at Jodhpur in S.B. Civil Revision
G Petition No. 1414/99 dismissing an application filed by the appellant herein
questioning an order of the Addi. District & Session Judge No. 1,
Hanumangarh Camp Sangaria dated 8.10.1999 directing to submit herself to
medical examination on the question as to whether she is of unsound mind.

The paities herein were married on 26.6.1991 according to the Hindu
H rites. On or about 3.6.1995, the respondent filed an application for divorce
SHARDA v. DHARMPAL (S.B. SINHA, J.] 113

against the appellant under Section 12(1)(b) and 13(I)(iii) of the Hindu A
Marriage Act, 1955. He filed an application seeking directions for medical
examination of the appellant on 5th May, 1999. The appellant objected thereto
inter alia on the ground that the Court had no jurisdiction to pass such
directions. By an order dated 8. I0.1999 the said application was allowed
directing the appellant to submit herself to the medical examination, Aggrieved
by the said order, she filed a Revision Petition before the High Court which B
was dismissed by the impugned judgment.

Mr. Kaushik, the learned counsel appearing on behalf of the appellant
herein has principally raised two contentions in support of this appeal. Firstly.
compelling a person to undergo a medical examination by an order of the C
Court would be violative of right to 'personal liberty' guaranteed under Article
21 of the Constitution of India. Secondly, in absence of a specific empowering
provision, a court dealing with matrimonial cases cannot subject a party to
the Iis to undergo medical examination against his/ her volition. Jn the event,
ifa party does not undergo such medical examination, the Court may merely
draw an adverse inference.. D
The learned counsel in support of his aforementioned contentions relied
upon Bipinchandra Shantifaf Bhatt v. Madhuriben, AlR (1963) Gujarat 250,
Smt. Revamma v. Shri Shanthappa. AlR 1972 Mysore 157, Shanti Devi v.
Ram Nath, AlR (I 972) P&H 270, M. Venkatachallapati v. Aroja, AIR (I 981) E
Madras 349, Gautam Kundu v. State of West Bengal, AIR (1993) SC 2295,
P.A. Anbu Anandan v. Sivakumari, AIR (1999) Madras 232, Smt. Ningamma
and Anr. v. Chikkaiah and Anr., AlR (2000) Kar. 50.

Ms. Nanita Sharma, the learned counsel appearing on behalf of the
respondent, submitted that a Matrimonial Court is required to arrive at a F
finding as to whether the appellant herein had been suffering from unsoundness
of mind, mental disorder or insanity by virtue of the provisions contained in
Section 5, Section 12(1) and Section 13( I) of the Hindu Marriage Act, 1955.
As such a state of mind of a party to the marriage may render the marriage
voidable, the Court is entitled to take the expert's opinion in this behalf so
as to enable it to satisfy itself as regard the existence of the conditions for G
grant of a decree for divorce.

The learned counsel further contended that the exposure to medical
examination aided by scientific data would not infringe the right to personal
liberty under Article 21 of the Constitution of lndia.
H
114 SUPREME COURT REPORTS [2003] 3 S.C.R.

A In support of the said contentions the learned counsel relied upon G.
Venkatanarayan v. Kurupati Lai:mi Devi, AIR (1985) A.P. 1, Birendra Kumar
Biswas v. Hemlata Biswas, AIR ( 1921) Cal. 459, George Swamidoss Joseph
v. Miss Sundari Edward., {(1954) 67 Mad LW 676} and A.S. Mohammad
Ibrahim Umma/ v. Shaik J\·fohwnmad Marakayar and Anr., AIR ( 1949) Mad.
B 292.

The relevant .statutory provisions of the Hindu Marriage Act, 1955
(Section 5, 12(l)(b) and !3(l)(iii)) for adjudication of this case are outlined
as follows :

··s. CONDITIONS FOR A HINDU MARRIAGE -A marriage may be
c solemnized between any two Hindus, if the following conditions are
fulfilled, namely, -

(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party -
D (a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering
from mental disorder of such a kind or to such an extent as to
be unfit for marriage and the procreation of children; or
E
(c) has been subject to recurrent attacks of insanity;
(iii) .. ..
(iv) .. ..
(v) .. ..
F
12.VOIDABLE MARRIAGES.

(I) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by
a decree of nullity on any of the following grounds, namely, -
G
(a) ...

(b) that the marriage is in contravention of the condition specified
in clause (ii) of section 5;

13. DIVORCE.
H
SHARDA v. DHARMPAL [S.B. SINHA, J.] 115
'-·
(I) Any marriage solemnized, whether before or after the A
commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the
ground that the other party -

(i) ...

(ii) B
(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.
c
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;
D
(b) the expression "psychopathic disorder" means 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;"
E
Clause 2(b) of Section 5 provides for one of the conditions for a valid
Hindu marriage that neither party must be suffering from unsoundness of
mind, mental disorder or insanity. In terms of Section 12(1)(b) of the Act a
man-iage may be held to be voidable if the other party was suffering from
mental disorder or insanity. Section 13( I)(iii) of the Act provides that a party
to the marriage may present a petition for dissolution ofman-iage by a decree F
of divorce inter alia on the ground that the other party has been incurably of
unsound mind and has been suffering continuously or intermittently from
mental disorder of such a kind that the petitioner cannot reasonably be expected
to live with the respondent. It is beyond any cavil that a marriage in
contravention of the aforementioned provisions of the Hindu Man-iage Act is G
per se not void but is merely voidable.

Issues for consideration

The following issues arise for consideration in the present case:
A. Whether a Matrimonial Court has the power to direct a party to H
116 SUPREME COURT REPORTS (2003 I 3 S.C.R.

A undergo medical examination?
B. Whether passing of such an order would be in violation of Article
21 of the Constitution of India?

A. Power of the Court to direct a party to undergo medical
B examination

It is trite law that for the purpose of grant of a decree of divorce what
is necessary is that the petitioner must establish that unsoundness of mind of
the respondent is incurable or his/her mental disorder is of such a kind and
to such an extent that he cannot reasonably be expected to live with his/ her
C spouse. Medical testimony for arriving at such finding although may not be
imperative but undoubtedly would be of considerable assistance to the court.
We may, however, hasten to add that 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.
D
A sound mind indisputably is a key to a happy married life. A party to
the marriage must, thus, have normal and sound mind so as to live a happy
marital life. A disorder of thought, behaviour and mind leading to unsoundness
of mind may give rise to a cause of action for filing an application under
E Section 13( I )(iii) of the Hindu Marriage Act. 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.

The decisions rendered by various courts of this country including this
Court lead to a conclusion that a decree for divorce in terms of Section
p 13(1 )(iii) of the Act can be granted in the _event the unsoundness of mind is
held to be not curable. A party may behave strangely or oddly inappropriate
and progressive in deterioration in the level of work may lead to a conclusion
that he or she suffers from an illness of slow growing developing over years.
The disease, however, must be of such a kind that the other spouse cannot
reasonably be expected to live with him or her. A few strong instances
G indicating a short temper and somewhat erratic behaviour on the part of the
spouse may not amount to his/ her suffering continuously or intermittently
from mental disorder.

It may be noticed that Section 2(1) of the Mental Health Act, 1987
H defines 'mentally ill person" to mean a person who is in need of treatment
SHARDA v. DHARMPAL [S.B. SINHA, J.] 117

by reason of any mental disorder other than mental retardation. Mental disorder A
may further be of varying degree.

This Court in Ram Narain Gupta v. Rameshwari, AIR (1988) SC 2260
while considering a question as to whether a party to the marriage was
suffering from schizophrenia observed:
B
"14. Indeed the caution of a learned author against too readily giving
a name to a thing is worth recalling :
"Giving something a name seems to have a deadening influence
upon all our relations to it. It brings matters to a finality. Nothing
further seems to need to be done. The disease has been identified. C
The necessity for further understanding of it has ceased to exist."

It is precisely for this reason that a learned authority on mental health
saw wisdom in eschewing the mere choice of words and the hollowness
they would bring with them. He said :
"I do not use the word 'schizophrenia' because I do not think D
any such disease exists .... I know it means widely different things
to different people. With a number of other psychiatrists, 1 hold
that the words 'neurosis', 'psychoneurosis', 'psychopathic
personality', and the like, are similarly valueless. I do not use
them, and I try to prevent my students from using them, although E
the latter effort is almost futile once the psychiatrist discovers
how conveniently ambiguous these terms really are ...."
"In general, we hold that mental illness should be thought and
spoken of less in terms of disease entities than in terms of
personality disorganization. We can precisely define organization p
and disorganization; we cannot precisely define disease .... "
"Of course, one can describe a 'manic' or a 'depressed' or a
'schizophrenic' constellation of symptoms, but what is most
important about this constellation in each case ? Not, we think,
its curious external form, but rather what it indicates in regard G
to the process of disorganization and reorganization of a
personality which is in fluctuant state of attempted adjustment
to environmental reality. Is the imbalance increasing or
decreasing? To what is the stress related? What psychological
factors are accessible to external modification? What latent
capacities for satisfaction in work, play, love, creativity, are H
118 SUPREME COURT REPORTS [2003] 3 S.C.R.

A discoverable for therapeutic: planning? And this is language that-
can be understood. It is practical language and not language of
incantation and exorcism."

15. This medical concern against too readily reducing a human being
into a functional n'Jn-entity and as a negative unit in family or society
B is law's concern also is reflected, at least partially, in the requirements
of Section 13 ( 1) (iii). In the last analysis, the mere branding of a
person as schizophrenic will not suffice. For purposes of Section 13
(I) (iii) 'schizophrenia' is what schizophrenia does."

Having regard to the complexity of the situation, the doctor's opinion
C may be of utmost importance for granting or rejecting a prayer for a ciecree
of divorce. The question is as to whether a mental disorder is curable can be
subject matter of determination of by a Court of Law having regard to the
expert medical opinion and particularly the ongoing development in the
scientific and medical research in this direction.
D The Hindu Marriage Act or any other law governing the field do not
contain any express provision empowering the Court to issue a direction
upon a party to a matrimonial proceedings to compel him to submit himself
to a medical examination. However, in our opinion, this does not preclude a
court from passing Stich an order. w,, may, however, notice that such
E provisions have expressly been inserted in England by way of Sections 22
and 23 of the Family Law Reform Act, 1987 on the recommendations of the
Law Commission. Sections 23 is to the following terms:

"23. Provisions as to scientific t<osts

(I) For subsections (I) and (2) of section 20 of the Family Law
F Reform Act 1969 (power of court to require use of blood tests)
there shall be substituted the following subsections -

G
(I) In any civil proceedings in which the parentage of any
person falls to be determined, the court may, either of its
own motion or on an application by any party to the
proceedings, give a direction-

(a) for the use of scientific tests to ascertain whether such
-
te~ts show that a par1:y to the proceedings is or is not the
father or mother of that person; and
H (b) for the taking, within a period specified in the direction,
SHARDA v. DHARMPAL [S.B. SINHA, J.] 119

of bodily samples from all or any of the following, A
namely, that person, any party who is alleged to be the
father or mother of that person and any other party to
the proceedings;

and the court may at any time revoke or vary a direction
previously given by it under this subsection." B
The English courts at one point of time held that the Court had no
power to order a blood test on the ground that it would be a battery which
no court may authorize. (See S v. S, W. v. Official Solicitor, [1972] AC 24:
[1970] 3 All ER 107, W v. W., [1963] 2 All ER 841.
c
However, the Court has been empowered to issue such a direction in
a civil litigation ..

In B.R.B. v. JB., (1968) 2 All.E.R. 1023, it was held:

"A judge of the High Court has power to order a blood test whenever D
it is in the best interest of the child. The judges can be trusted to
" exercise this discretion wisely. No limit-condition or bound is set up
to the way in which judges exercise their discretion. The object of the
court always is to find out the truth. When scientific advances give
fresh means of ascertaining it, there should not be any hesitations to
use those means whenever the occasion requires." E

As regard cases involving capacity as given In re M.B. [(An Adult :
Medical Treatment) 1997 (2) F.C.R. 541] when surgical or invasive treatment
may be needed by a patient, certain guidelines had been enumerated in St.
George's Healthcare N.HS. Trust v. S. Regina v. Collins and Ors., Ex parte F
S. reported in 1998 (3) Weekly Law Reports 936. These guidelines are:

"(i) They have no application where the patient is competent to accept
or refuse treatment. In principle a patient may remain competent
notwithstanding detention under the Mental Health Act 1983.

(ii) If the patient is competent and refuses consent to the treatment, G
an application to the High Court for a declaration would be pointless.
In this situation the advice given to the patient should be recorded.
For.their own protection hospital authorities should seek unequivocal
assurances from the patient (to be recorded in writing) that the refusal
represents an informed decision, that is, that she understands the H
120 SUPREME COURT REPORTS (2003] -3 S.CR.

A nature of and reasons for the proposed treatment, and the risks and
likely prognosis involved in the decision to refuse or accept it. If the
patient is unwilling to sign a written indication of this refusal, this too
should be noted in writing. Such a written indication is merely a
record for evidential purposes. It should not be confused with or
regarded as a disclaimer.
B
(iii) If the patient is incapable of giving or refusing consent, either in
the long term or temporarily (e.g. due to unconsciousness), the patient
must be cared for according to th1! authority's judgment of the patient's
best interests. Where the patient has given an advance directive, before
becoming incapable, treatment and care should normally be subject
c to the advance directive. However, if there is reason to doubt the
reliability of the advance directive (for example it may sensibly be
thought not to apply to the circumstances which have arisen), then an
application for a declaration may be made."

Although individuals have the right not to be subjected to compulsory
D
physical interventions and treatments but every measure adversely affecting
a person's physical and moral integrity necessarily does not involve an
interference with respect to his private life. (Costello-Roberts v. United
Kingdom reported in (1995) 19 EHRR 112.

E (See Human Rights Law and Practice - Chapter 4 - The European
Convention on Human Rights - Article 8 : Right to respect for private and
family life - Page 165 at 169)

In Wigmore on Evidence, Volume VIll, third edition, it has been
observed:
F
"The Courts can as well command a witness to let the jury, or qualified
experts, inspect his premises, his chattels, or his person, as to produce
his documents. It is not to be supposed that our Courts will finally
commit themselves to the denial of such a plain dictate of principle
and of common sense."
G
It has been further observed:

"(c) As to a witness' living body, whether by self-exhibition to the
jury at the trial, or by inspection of experts out of court, there is
ample authority denying any privilege of non-disclosure; the trial
H Court's discretion determining the necessity and the suitable
SHARDA v. DHARMPAL [S.B. SINHA, J.) 121
conditions. But some Courts still decline to tak'e this liberal view, A
even in cases where this form of evidence is most necessary, as on
a charge of rape or of slander of chastity. It is astonishing that Courts
are so tardy in ignoring th.e propriety of getting at the truth by direct
and simple methods, especially when modern science can here be of
such peculiar assistance. Notable examples of the vital necessity of B
here resorting to modern scientific methods are seen in the inquiry
into paternity by blood-group examination and into the credibility of
a woman-complainant in sex-crimes by psychiatric examination.

Whether a person under arrest (not a witness) may be measured,
photographed, or physically examined, is considered post, under the C
privilege against self-crimination."

In Phipson on Evidence, 14th Edition, it is stated:

"9-01 Competence is to be distinguished from compellability. A person
may be admitted to give evidence, though in certain cases he will not
be compelled by the court to do so. In general, all persons are both D
competent and ·compellable. A person, howeve"r, though competent
and compellable as a witness may not be competent or may not be
compellable to give evidence as to particular matters."

It has been further stated:
E
"1·13. Detention, preservation, inspection, samples, photographs,
experiments· A report by a court expert may be ordered under Order
40, r. I, and this may involve experiments and tests. In patent actions
this power is given by Order I03, r. 27, but there is a discretion, and
the court will not make an order for an inspection for what may be F
nothing more than a 'fishing' inspection; in arbitrations by the
Arbitration Act 1950, s. 12(6); in references by Order 36, and in
country court cases by C.C. Rules 1981, Ord. 19 and Ord. 21, r. 6 (an
inspection of a lady's mouth by a dentist was, however, refused under
these rules as not being "any property or thing the subject-matter of
the action"). Nonetheless, medical inspection of a party may be ordered G
in various cases, e.g. in Chancery to determine pregnancy; in nullity
suits on the ground of impotence, and refusal to submit is evidence
against the party; though bankrupts cannot be compulsorily examined
with a view to their life insurance. A plaintiff in a personal injury
action is liable to have his action stayed unless he submits to a medical H
122 SUPREME COURT REPORTS (2003] 3 S.C.R.
A ,examination on behalf of the defendant. Moreover, the court will not
lightly order an examination which is unpleasant, painful or potentially
dangerous. Since 1974, the court has had power to order that the
parties exchange accounts of the substance of any oral or documentary
expert medical evidence as a condition precedent to allowing the
expert's rei;ort to be given at an. These two rules substantially nullify
B the common law privilege, which prevented the court from ordering
the exchange of medical reports. The privilege still exists and will be
of importance in relation to evidence obtained but, because
unfavourable, not intended to be used or where the court exercises its
discretion against disclosure. So, scientific experiments may be
C ordered, artistic tests undertaken, or specimens of handwriting brought
into being, in or out of court, during the trial. Regulations may be
made under the National Insurance (Industrial Injuries) Act I965, s.
50, providing for examination and report on any questfons arising for
decision under the Act."

0 In the event a Court of Law may find a person as disabled either
physically or mentally, an .appropriate direction for his rehabilitation having
regard to Universal Declaration on th<, Rights of Disabled Persons, 1975,
provisions of the Persons with Disabilitiies (Equal opportunities, Protectiqn of
Rights and Full Participation) Act, 1995, the National Trust for Welfare with
E Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act,
1999 and other statutes, may be issued.

The Court, however, indisputably is empowered to satisfy itself as to
whether a party before it suffers from mental illness or not either for the
purpose of appointment of a guardian in terms of Order 32, Rule 15 of Code
F of Civil Procedure or Section 41 of the Indian Lunacy Act as also for the
determination of his competence as a witness.

Order 32, Rule 15 of Code of Civil Procedure and Section 41 of the
Indian Lunacy Act read thus:

Order 32 Rule 15: RULES I TO 14 (EXCEPT RULE 2-A) TO APPLY
G
TO PERSONS OF UNSOUND MIND. 11

Rules I to I 4 (except rule 2-A) shall so, far as may be, apply to
persons adjudged, before or during the pendency of the suit, to be of
unsound mind and shall also apply to persons who, though not so
H adjudged, are found by the court on enquiry to b~ incapable, by
..1..

SHARDA v. DHARMPAL [S.B. SINHA, J.) 123

reason of any mental infirmity, of protecting their interest when suing A
or being sued.

41. Powers of Court in respect of attendance and examination of
lunatic -

(I) The Court may require the alleged lunatic to attend at such B
convenient time and place as it may appoint for the purpose of
being personally examined by the Court, or by any person from
whom the Court may desire to have a report of the mental
capacity and condition of such alleged lunatic-
(2) The Court may likewise make an order authorizing any person C
or persons therein named to have access to the alleged lunatic

I
•
for the purpose of a personal examination."

It will also be relevant to note that the Court has power to issue
appropriate direction for protection of human rights of mentally ill persons
and to see to it that a person suffering from mental illness gets adequate D
protection in terms of the Mental Health Act.

In Halsbwy's Laws of England, Volume 11, 4th Edition, it has been
noticed that the mentally retarded persons are incompetent to give evidence.
However it is stated:

"A person of unsound mind may give evidence if the trial judge is
E
satisfied that he is then of sufficient understanding to give rational
evidence; his suffering from delusions does not render him
incompetent."

In Halsbury's Laws of England, Volume 17, 4th Edition, the Judge's F
duty in this behalf has been summarised stating:

"232. Judge's duty. Questions as to the competency or incompetency
of a witness are decided by the judge, generally on a preliminary
examination called the voir dire; but if the incompetency of a witness
is not discovered until after he is sworn and has given evidence, his G
evidence may nonetheless be objected to and rejected."

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 Code of Civil H
...4.-.

124 SUPREME COURT REPORTS [2003] 3 S.C.R.

A Procedure and the Evidence Act, has an inherent power in terms of Section
151 of the Code of Civil Procedure to pass all orders for doing complete
justice to the parties to the suit.

Discretionary power under Section 151 of Code of Civil Procedure, it
is trite, can be (:xercised also on an application filed by the party.
B
In certain cases medical examination by the experts in the field may not
only found to be leading to truth of the matter but may also lead to removal
of misunderstanding between the pairties. It may bring the parties to terms.

Having regard to development in medicinal technology, it is possible to
C find out that what was presumed to be a mental disorder of a spouse is not
really so.

In matrimonial disputes, the court has also a conciliatory role to play
- even for the said purpose it may require expert advice.

D Under Section 75(e) of Code of Civil Procedure and Order 26 Rule
lOA the Civil Court has .the requisite power to issue a direction to hold a
scientific, techni.cal or expert investigation.

In Gautam Kundu v. State of West Bengal and Anr.. [1993] 3 SCC 418,
E this Court while dealing with a question about the paternity of a child noticed
the provisions of Section 112 of the Evidence Act and held that the presumption
arising thereunde,r can only be displaced by a strong preponderance of evidence
and not by a mere balance of probabilities. It was held:

"26. From the above discussion it emerges -

F (I) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have
roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong primafacie case in that the husband must
G establish non-access in order to dispel the presumption arising under
Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be !he
consequence of ordering the blood test; whether it will have the e~t
of branding a child as a bastard and the mother as an unchaste woman.
H
SHARDA v. DHARMPAL [S.B. SINHA, J.) 125
(5) No one can be compelled to give sample of blood for analysis". A
Goutam Kundu (supra) is, therefore, not an authority for the proposition
that under no circumstances the Court can direct that blood tests be conducted.
It, having regard to the future of the child, has, of course, sounded a note of
caution as regard mechanical passing of such order. In some other jurisdictions,
it has been held that such directions should ordinarily be made if it is in the B
interest of the child.

We may now take note of some of the decisions cited by the learned
counsel of the parties.

In Bipinchandra Shanti/al Bhatt (supra), it was held: c
"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 D
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 E
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 F
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."

In Smt. Revamma (supra), the Court relied upon the decision of Gujarat G
High Court in Bipinchandra Shanti/al Bhatt (supra) and also the decision of
the Andhra Pradesh High Court in P. Sreeramamurthy v. Lakshmikantham,
AIR ( l 955) Andhra 207 for laying down a law that Section I 51 of Code of
Civil Procedure cannot be taken recourse to for the purpose of compelling a
per.son to be subjected to a medical examination. We do not agree. H
126 SUPREME COURT REPORTS [2003) 3 S.C.R.

A In Shanti Devi (supra) Bipinchandra Shanti/al Bhatt (supra) was
followed. In that case the respondent was already under the treatment of a
doctor. A doctor was examined only after recording of the evidence of doctor
and an application was filed that the respondent be permitted to undergo
medical examination for the purpose of finding out as to whether unsoundness
B of mind of the respondent was incurable or not.

It was held that nobody can be forced to go to a mental hospital to
undergo a medical treatment and it would be for the Court to draw an adverse
inference against him for not doing so.

In P.A. Anbu Anandan (supra) the question before the Court was as to
C whether there had been a consummation of marriage. Following Gautam
Kundu (supra) it was held that the Court cannot compel a person for
compulsory medical examination of a party against his wish.

Jn Smt. Ningamma and Anr., (supra) it was observed:
D "2 l. Right to personal liberty is also ,very important. To compel a
person to undergo or to submit himself or herself to medical
examination of his order blood test or the like without his consent or
against his wish tantamounts to interference with his fundamental
right of life or liberty particularly even when there is no provision
E either in the Code of Civil Procedure or the Evidence Act or any
other law which may be said to authorize the Court to compel a
person to undergo such a medical test as blood group test or the like
against his wish, and to create doubt about the chastity of a woman
or create doubt about the man's paternity. It will amount to nothing
but interference with the right of personal liberty. Here as mentioned
F earlier, S. 112 read with S.4 Evidence Act really have the effect of
completely closing and debarring the party from leading any evidence
with respect to the fact whi.ch the law says that to be the conclusive
proof of legitimacy and paternity of child covered by S. 112 of
Evidence Act, except by showing that during the relevant periods of
time as referred to in S. 112 the parties to the marriage had no access
G
to each other, and the allowing of medical test to test the blood group
to determine paternity would run counter to the mandate of Art. 21
of the Constitution as well and inherent powers are not meant to be
exercised to interfere with the fundamental right of life and liberty of
the person nor to nullify or stultify any statutory provision."
H
SHARDA v. DHARMPAL [S.B. SINHA, J,) 127
Therein the Court was again considering the question as to whether a child A
was born out of the wedlock or not.

However, there have been several judgments where such a power has
been found to be existing in the Court.

Mookerjee, A.CJ. speaking for a Division Bench in Birendra Kumar B
Biswas (supra) in a case under Section 19 of the Divorce Act for recession

- of marriage contract on the ground of existence of syphilis in one party to
marriage after taking into consideration a large number of decisions observed:

"In these circumstances, we must hold that there has not been that
full investigation of the case which the gravity of the result to the C
parties concerned required. The appeal must consequently be allowed
and the case remanded for retrial. The allegation of fraud will be
investigated and the question whether the condition of the respondent
makes the rule of impotency as explained above applicable will be
carefully reconsidered. We may add that it is necessary that there. D
should be a proper medical examination of the person of the
respondent. R' ference may on this point be made to the following
passage from the judgment of Lord Stowell in Briggs v. Morgan,
(1820) 3 Phil!. 325:

"It has been said that the means resorted to for proof on E
th.ese occasions are offensive to natural modesty, but nature
has provided no other means, and we must be under the
necessity of saying that all relief shall be denied or of
applying the means within our power. The Court must not
sacrifice justice to notions of delicacy of its own."
F
See also Norton v. Seton, (I 819) 3 Ph ill 147; Pollard v. Wybourn,
(1828) I Hag. Ecc. 725; Aleson v. Aleson, (1728) 2 Lee Ecc. 576;
Sparrow v. Harrison, (1841) 3 Curt. 16; affirmed in Harrison v.
Harrison, ( 1842) 4 Moo. P.C. 96. Where a party refuses to attend for
medical inspection, the Court may properly draw an unfavourable
inference. This was laid down in the case of a female respondent F. G
v. P., [(I 896) 75 L.T. 192] and was extended to the case of a male
respondent in B. v. B., ((1901) P. 39] and was applied again in the
case of a female respondent in W. v. S., ( 1905) P. 23 I. The Courts
naturally exercise a wide discretion in ordering physical examination
and always do so, subject to such conditions as will afford protection H
128 SUPREME COURT REPORTS [2003] 3 S.C.R.

A from violence to natural delicacy and sensibility. We understand that
the respondent does not object to a proper medical examination."

In G. Venkatanarayana (supra) the Andhra Pradesh High Court upon
taking into consideration its earlier decision as also judgments of other High
Courts including Bipinchandra Shanti/al (supra), Smt. Revamma (supra) held:
B
"The close affinity between law and medicine is demonstrated by
medical jurisprudence. The physician as an expert witness has become
a common and welcome feature in Courts ranging from opinions on
nature and degree of injuries to the proximate cause of death in
criminal cases, assessment of insanity and several other situations.
-
c When there is a dispute between the wife and husband about the
potency of either of them their evidence reflected by truth constitutes
the cream of evidence and the marshalling of adventitious or extraneous
circumstances afford a poor substitute. In the event of diametrically
opposite and rival versions of the parties the recourse to medical test
resolves the riddle and the medical opinion assumes the acceptable
D
piece of evidence. In the present atmosphere of looking forward to
progeny of artificial insemination, scientific probe by virginity tests
and the knowledge of pre-d,~livery sex the depreciation of the
importance: of determination of potency by medical test does not bear
'
I

the impress of realistic approach."
E
[See also George Swamidoss Joseph (supra)].

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 Code of Civil
F Procedure. 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, therefore, 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
G 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 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
H a psychoanalyst so as to enable the Court to arrive at a just conclusion.
SHARDA v. DHARMPAL [S.B. SINHA, J.] 129

- Whether the party to the marriage requires a treatment or not can be found
out only in the event, he is examined by a properly qualified Psychiatrist. For
the said purpose, it may not be necessary to submit himself to any blood test
A

or other pathological tests.

If the Court for the purpose envisaged under Order 32 Rule ] 5 of Code
of Civil Procedure or Section 41 of the Indian Lunacy Act C~Jl do it suo B
motu, there is no reason why it cannot do so on an application filed by a
party to the marriage.

Even otherwise the Court may issue an appropriate d_irection so as to
satisfy himself as to whether apart from treatment he requires adequate C
protection inter a/ia by way of 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 the tis. D
Furthermore, the Court must be held to have the requisite power even
under Section 151 of Code of Civil Procedure to issue such direction either
suo motu or otherwise which, according to him, would lead to the truth.

B. Would subjecting a person to a medical test be in violation of E
Article 21 of the Constitution of India?

The right to privacy has been developed by the Supreme Court over a
period of time. A bench of eight judges in M.P. Sharma v. Satish Chandra,
AIR (1954) SC 297 at 306, in the context of search and seizure observed that:
F
"When the Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a fundamental
right to privacy, analogous to the American Fourth Amendment, we
have no justification to import it, into a totally different fundamental
right, by some process of strained construction"
G
Similarly in Kharak Singh v. State of UP, AIR (1963) SC 1295, the
majority judgment observed thus:

"The right of privacy is not a guaranteed right under our Constitution
and therefore the attempt to ascertain the movements of an individual
which is merely a manner in which privacy is invaded is not an H
1

130 SUPREME COURT REPORTS [2003) 3 S.C.R.

A infringement of a fundamental right guaranteed by Part Ill.''

With the expansive interpretation of the phrase 'personal liberty', this
-
right has been read into Article 21 of the Indian Constitution. [See R. Rajagopal
v. Stale of Tamil Nadu and Ors .. AIR (1995) SC 264, People's Union of Civil
Liberties v. Union of India, [1997) l SCC 30 I. In some cases the right has
B been held to be amalgam of various rights.

But the right to privacy in terms of Article 21 of the Constitution is not
absolute right.

In Govind v. State of Madhya Pradesh and Anr.. AIR (1975) SC 1378,
C it was held:
"Assuming that the fundamental rights explicitly guaranteed to a citizen
have penumbra! zones and that the right to privacy is itself a
fundamental right, that fundam1~ntal right must be subject to restriction
on the basis of compelling public interest." (Para 31)
D
If there were a conflict between fundamental rights of two parties, that
right which advances public morality would prevail. [See Mr. 'X' v. Hospilal
'Z', (1998) 8 SCC 296 and Mr. 'X' v. Hospital 'Z'. (2003) I SCC 500. In R.
Rajagopal v. State of Tamil Nadu and Ors., AIR (1995) SC 264, this Court
E upon formulating six principles, however, hastened to add that they are only
broad principles and neither exhaustive nor all comprehending and indeed no
such enunciation .is possible or advisable.

In Govind v. State of Madhya Pradesh and Anr., (supra) it was held:

"28. The right to privacy in any event will necessarily have to go
F through a process of case-by .. case development. Therefore, even
assuming that the right to. personal liberty, the right to move freely
throughout the territory of India and the freedom of speech create an
independent right of prjvacy as an emanation from them which one
can characterize as a fundamental right, we do not think that the right
G is absolute . "

Having outl.ined the law relating to right to privacy in India, it is
relevant in this context to notice that certain laws have been enacted by the
Indian Parliament where the accused may be subjected to certain medical or
other tests.
H
SHARDA v. DHARMPAL [S.B. SINHA, J.) 131

By way of example, we may refer to Section 185, 202, 203, 204 of the A
Motor Vehicles Act; Section 53 and 54 of the Code of Criminal Procedure
and Section 3 of the Identification of Prisoners Act, I 920. Reference in this
connection may also be made to Sections 269 and 270 of the Indian Penal
Code. Constitutionality of these laws, if challenge is thrown, may be upheld.

In M. Vijaya v. The Chairman, Singareni Collieries and Ors., reported B
in AIR (2001) AP 502, the court, upon a detailed discussion of the competing
rights of a private party and public right with reference to right to privacy of
a person suspected of suffering from AIDS, held:

"There is an apparent conflict between the right to privacy of a
person suspected of HIV not to submit himself forcibly for medical C
examination and the power and duty of the State to identify HIV
infected persons for the purpose of stopping further transmission of
the virus. In the interests of the general public, it is necessary for the
State to identify HIV positive cases and any action taken in that
regard cannot be termed as unconstitutional as under Article 47 of the D
Constitution, the State was under an obligation to take all steps for
the improvement of the public health. A law designed to achieve this
object, if fair and reasonable, in our opinion will not be in breach of
Article 21 of the Constitution of India.

It is well settled that right to life guaranteed under Article 2 I is E
nc.t mere animal existence. It is a right to enjoy all faculties of life.
As a necessary corollary,. right to life includes right to healthy life."

It was observed:

"Yet another aspect of the matter is whether compelling a person F
to take HIV test amounts to denying the right to privacy? In Kharak
Singh v. State of U.P., Govind v. State of M.P. and other cases, the
Supreme Court held that right to privacy is one of the penumbra!
rights of Article 2 I of the Constitution. Jn all situations, a person can
be asked to undergo HIV test with informed consent. If a person
declines to take a test, is it permissible to compel such person to take G
the test? The question is whether right to privacy is violated if a
person is subjected to such test by force without his consent? By the
end of 1991, 36 federal states in USA enacted legislations regarding
informed consent for HIV test. These legislations intended to promote
voluntary test and risk reduction counselling. In USA, Jaw also applies H
132 SUPREME COURT REPORTS [2003] 3 S.C.R.

A for involuntary tests and disclosure of information about the people
in prisons, mental hospitals, juvenile facilities and residential homes
for mentally disabled persons. (See AIDS Law Today - Scott Burry
and others published by Yale University - 1993).

In ln_dia there is no general law as such compelling a person to
B undergo HIV IAIDS test. Indeed, Article 20 of the Constitution states
that no person accused of any offence shall be compelled to be a
witness against himself. Be that as it may, under Prison Laws, as
soon as a prisoner is admitted to prison, he is required to be examined
medically and the record of prisoners' health is to be maintained in
a register. Women prisoners can only be examined by the matron
c under the general or special powers of the Medical Officer. As per
Section 37 of the Prisons Act, any prisoner wanting to be medically
examined or appearing to be sick has to be reported before the Jai !or
who in turn is liable to call the attention of the Medical Officer in that
behalf and all the directions issued. by the Medical officer are to be
D recorded."

It was also noticed:

"Under the ITP Act, the sex workers can also be compelled to
undergo HIV I AIDS test. When sex workers are detained in corrective
E institutions or welfare homes either under Section IOA or under Section
17(4) or 19(2) of the Act, there are adequate provisions for medical
examination. There are also provisions in segregating rescued women
who are suffering from venereal diseases. We may also notice that
Section 2 of Dissolution of Muslim Marriage Act, 1939, Section 32
of Parsi Marriage and Divorce Act, l 936, Section I0 of Indian Divorce
F Act, 1869, Section 13 of Hindu Marri_age Act, 1956 and Section 27
of the Special Marriage Act, 1955 make incurable venereal diseases
of either of spouses a ground for divorce. Further under sections 269
and 270 of the Indian Penal Code, 1860, a person can be punished
for negligent act of spreading infectious diseases.
G In cases of divorce on the ground that the other spouse is suffering
from HIV/AIDS or in case under sections 269 and 270 l.P.C., can the
person be compelled to give blood specimen for HIV test. The
immunity under Article 20 does not extend to compulsion of giving
of blood specimens."
H
SHARDA v. DHARMPAL [S.B. SINHA, J.] 133

- The question may be considered even from the human rights angle.
Useful reference, in this connection, may be made to paragraphs 149 and 164
ofHalsbury's Laws of England, Fourth Edition, Reissue, Volume 8(2), which
A

are as under:

"149. Respect for private and family life, home and cqrrespondence.
Everyone has the right to respect for his private and family life, his B
home and his correspondence. There may be no interference by a
public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-
being of the country, or for the prevention of disorder or crime, for C
the protection of health or morals or for the protection of the rights
and freedoms of others."

"I 64. Prohibition of discrimination. The enjoyment of the rights and
freedoms as set out in the Convention for the Protection of Human
Rights and Fundamental Freedoms (1950) must be secured without D
discrimination on any ground such as sex, race, colo.ur, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.

This provision refers only to discrimination in respect of the
enjoyment of the guaranteed rights and freedoms. However, its E
application does not presuppose a breach of any of the other provisions
of the Convention. It is sufficient if the facts of a case fall within the
ambit of one or more of the substantive articles.

The provision may only be violated by a difference in treatment
between persons who are in comparable situations which has no F
objective and reasonable justification. Contracting states enjoy a margin
of appreciation in relation to the question of justification, which
depends upon the circumstances, subject matter and background of
the case."

The Court of Appeal, however, in R (on the application of S) v. Chief G
Constable of South Yorkshire, (2003) I All ER 148, upheld a legislation
compelling preservation of finger prints, bodily samples, DNA profiles and
DNA samples despite Articles 8 and 14 etc. of the Human Rights Act, 1998
which are as under:

"8. Right to respect for private and family life. (I) Everyone has the H ·
134 SUPREME COURT REPORTS (2003] 3 S.C.R.

A right to respect for his private and family life, his home and his
correspondence. -
2. There shall be no interference by a public authority with the
exercise of this right except such as in accordance with the law and
is necessary in a democratic society in the interests of national security,
B public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedomo of others."

14. Prohibition of discrimination. The enjoyment of th~ rights and
freedoms set forth in this Convention shall be secured without
C discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association
with a national minorit), property, birth or other status."

Lord Woolf, C.J., emphasizing the rmportance of protecting the public
against the consequences of crime, held that such law does not violate either
D Article 8(2) or 14 of the Act, observing:

"The respondents strongly rely on the extent of the parliamentary
scrutiny of the 200 I Act. It was extensive both in the House of
Commons and in the House of Lords. In addition the Joint Committee
on Human Rights carefully considered whether the amendment to s.
E 64 met the requirements of art. 8(2). The Joint Committee's Report
issued on 23 April 200 I (HL Po,per 69, HC 427) deals with the
amended s. 64 provisions at paras 86-92. In that report, the Joint
Committee stated (at para 88):
"When we first looked at the Bill, we took the view that the
F clauses [in relation to the retention of fingerprints and samples]
amounted to an interference with the person's right to respect
for private life [art. 8( I) of the i:onvention ], but that they provided
a sound legal basis for retention, by ensuring that the
circumstances in which retention and use were to be permitted
G were sufficiently dearly defined, appropriately directed, and
limited in scope, in order to satisfy the justifying conditions
under Article 8.2."
Mr. Gordon strongly contests the correctness of the Joint
Committee's assessment of the amendment but I respectfully agree
H with the Committee's approach. I r_egret to say that I caMot understand
-,

SHARDA v. DHARMPAL [S.B. SINHA, J.] 135
Mr. Gordon's submission that no justification has beeil shown for the A
amendment. Its purpose is obvious. The purpose is lawful. It is strictly
confined to situations in which fingerprints and samples have been
taken in accordance with art. 8. The fo1gerprints and samples can
' only be used for a purpose of 'the prevention or detection of crime,
the investigation of an offence or the conduct of a prosecution'. B
Language which is very similar to that in art 8(2).

In addition I regard the retention as being proportionate. By
confining the retention to fingerprints and samples which have already
lawfully been taken the amended provision limits the art. 8(1)
interference slgrtlficahtiy. As against that limited intrusion the scale C
of the database and therefore its value is substantially increased. I
find myself in complete agreement with the Divisional Court that the
interference with art. 8(1) rights of the individuals from whom the
fingerprints and samples are taken is justified by art. 8(2).

In considering whether the interference with art. 8(1) is justified, D
it is relevant that if my approach to the article is correct, in this
jurisdiction art. 8( I) may have a longer reach than is strictly required
by the convention as applied by Strasbourg. If this is the result of the
approach of society here then Parliament, as the democratically-elected
body representative of the public, has undoubtedly the untrammeled
right to establish the circumstances in which interference is justified E
as long as it does not fall below the standard set by the convention,
proportionality."

As regard Article 14 Issue, the learned Judge stated:

"In the present circumstances when an offence is being investigated F
or is the subject of a charge it is accepted that fingerprints and samples
may be taken. Where they have not been taken before any question
of the retention arises they have to be taken so there would be the
additional interference with their rights which the taking involves. As
no harmful consequences will flow from the retention unless the
fingerprints or sample match those of someone alleged to be G
responsible for an offence the different treatment is fully justified."

Waller, L.J., observed:

"The answer to Liberty's points is as 1 see it as follows. First the
retention of samples perrnits (a} the checking of the integrity and H
,.'
136 SUPREME COURT REPORTS (2003] 3 S.C.R.

A future utility of the DNA database system; (b) a re-analysis for the
up-grading of DNA profiles where new technology can improve the
discriminating power of the DNA matching process; (c) re-analysis
and thus an ability to extract other DNA markers and thus offer
benefits in terms of speed, sensitivity and cost of searches of the
database; (d) further analysis in investigations of alleged miscarriages
B of justice; and (e) further analysis so as to be able to identify any
analytical or process errors. It is these benefits which must be balanced
against the risks identified by Liberty. In relation to those risks, the
position in any event is first that any change in the law will have to
be itself convention compliant; second any change in practice would
c have to be convention compliant; and third unlawfulness must not be
assumed. In my view thus the risks identified are not great, and such
as they are outweighed by the benefits in achieving the aim of
prosecuting and preventing crime.

The answer to the first question posed by Liberty is first that the
D fact that other jurisdictions do things differently cannot provide an
automatic answer that this jurisdiction must be in breach of the
convention, and in any event second, judicial scrutiny of the question
of whether retention should be allowed does not provide an answer
to any of the risks identified by Liberty which occur whether judges
have scrutinized the question of retention or whether retention is on
E the basis provided for by the new section.

The answer to the second question is that retention of the samples
is beneficial in all the ways identified, and in particular it ensures the
integrity and future utility of the database. The benefits outweigh any
risks identified. The law is proportionate to the aim being sought to
F be achieved. That is so because in the fight against crime, there is the
need to be allowed to retain the samples lawfully taken. To keep
profiles alone would not he sufficient."

In the United States of America, such laws have been held not to
G violate the Fifth Amendment of the US Constitution. In Armando Schmerber
v. State of California, (384 US 757) obtaining of an alcohol test has been
held not to be unconstitutional. Similarly in Paul H. Breithaupt v. Morris
Abram, (352 US 432) taking of blood sample from an accused has been held
to be not in violation of Constitution 5th Amendment. In Charles Joseph
Kastigar and Michael Gorean S!ewart v. United States, (US 32 L.Ed. 2d
H 212) it is stated:
SHARDA v. DHARMPAL [S.B. SINHA, J.] 137

"The power of government to compel persons to testify in court or A
before grand juries and other governmental agencies is firmly
established, but is not absolute, being subject to a number of
exemptions, the most important of which is the Fifth Amendment
privilege against self-incrimination."

In Encyclopedia of the American Constitution, Volume 6 at page 2677 B
under the heading 'Testimonial and Nontestimonial Compulsion', it is stated:

"The Court prefers a different formulation: does non-testimonial
compulsion force a person to be a witness against himself criminally?
The consistent answer has been 'no', even if there was a testimonial
dimension to the forced admissions. If that testimonial dimension c
loomed too large, the Court loosened its distinction between testimonial
and nontestimonial compulsion and relied on some other distinction.
Thus, wher. the driver of a vehicle involved in an accident was required
by state law to stop and identify himself, though doing so subjected
him to criminal penalties, the Court saw no Fifth Amendment issue, D
only a regulation promoting the satisfaction of civil liabilities.
Similarly, when a lawyer or accountant was forced to tum over a
client's incriminating records, the client had not been compelled at
all, though he paid the criminal penalty and lost the chance to make
a Fifth Amendment plea. And when the police during the course of
a lawful search found incriminating business records, the records E
were introduced in evidence, although they could not have been
subpoenaed directly from the businessman. In these cases, where the
compuision was communicative or testimonial in character, the Court
inconsistently discoursed on the need to decide as it did in order to
avoid a decision against the introduction of non-testimonial evidence F
that had been compelled."

We may further notice that this Court in State of Bombay v. Kathi Kalu
Oghad, AIR (1961) SC 1808 and State (Delhi Administration) v. Gulzarilal
Tandon, AIR (l 979) SC 13 82 has held a direction to give specimen signature
or handwriting for their comparison· with the disputed handwriting is not G
violative of Clause (3) of Article 20 of the Constitution of India.

Such issues have cropped up in the United States of America in
dissolution of marriage proceedings or a child custody dispute. In the course
of such proceedings, mental health and parental fitness is sometimes called
into question by one of the parties. Frequently one party will seek to introduce H

1
138 SUPREME COURT REPORTS (2003] 3 S.C.R.

A evidence of the other party's mental health through medical records. However,
Federal common law, state common law, state statutes and the federal rules
of evidence recognize the importance of protecting confidential communication
with mental health professionals by recognizing a psychotherapist-patient
privilege. Still, in such Court proceedings, it has been held by US Courts that
B no privilege is absolute specially when it relates to determining the fitness of
the parents to have the custody of the child. The privilege can seriously
impact the child custody and dissolution of the marriage proceedings. In Re
Matthew R.. 113 Md. App 701, 715, 688 A2d. 955, 961 it was held that such
privilege if granted can seriously impact the child custody and dissolution of
marriage proceedings.
c If the nature of the information relates directly to the well-being of the
child or to the parent's ability to adequately care for child, and the court
believes the child is potentially in danger, courts are likely to admit the
information despite a patient's expectat:on of confidentiality. There are two
competing interests involved when a court determines whether to compel
D discovery of a patient-litigant's mental health records over his objection in a
child custody dispute. The first involves the privacy, confidentiality and
privilege expectation of both the patient and the treating mental health
professional in those communications. The second involves the application
of the best interests of the child(ren) standard. Virtually every jurisdiction in
E the United States makes a child custody determination based upon the "best
interest of the child".

"Privacy" is defined as "the state of being free from intrusion or
disturbance in one's private life or affairs". Mental health treatment involves
disclosure of one's most private fe(:!ings. In sessions, therapists often encourage
F patients to identify "thoughts, fantasies, dreams, terrors, embarrassments, and
wishes". To allow these private communications to be publicly disclosed
abrogates the very fiber of an individual's right to privacy, the therapist-
patient relationship and its rehabilitative goals. However, like any other
privilege the psychotherapist-paticmt privilege is not absolute and may only
be recognized if the benefit to society outweigh the costs of keeping the
G information private. Thus if a child's best interest is jeopardized by maintaining
confidentiality the privilege may be limited.

In Zuniga v. Pierce, 714 F.2d 632 (1983) the court reconciles these
competing interests by balancing the interests involved. The court stated:
H "This is necessarily so because th<: appropriate scope of the privilege like the
SHARDA v. DHARMPAL [S.13. SINHA. J.] 139

privilege itself, is determined by balancing the interests protected by shielding A
the evidence sought with those advanced by disclosure." The tripartite test
states that a "legitimate need" must be present for the evidence to exist, the
relevancy and materiality to the issue before the court, and the moving party
must demonstrate that the information to which they are seeking access "cannot
be secured from any less intrusive source". Allowing the court to order B
independent examination of a parent's mental faculties without piercirg the
confidentiality of the patient-psychotherapist relationship avoids thwarting
the psychotherapeutic process as well as allows the court to have all relevant
evidence before it in order to make the best decision regarding the best
interests of the children.

Laznovsky v. Laznovsky 74.5 A.2d I054 (Md. Ct App. 2000) is the
c
most recent case addressing the admissibility of mental health records of a
parent in a child custody proceeding. The court utilized the same balancing
test used by most jurisdictions. It weighed the best interest of the child
standard and the impo11ant interest in placing the child in the most safe,
stable, and nurturing environment possible versus protecting confidential D
information revealed in the course of therapy compromising the
psychotherapist-patient privilege and a basic riglit to privacy. The court
concluded that 'tne benefits to society of having confidential and privileged
treatment available to troubled parents far outweighs the ii.-,1itations placed
upon the court by not having such information revealed against a parents'
E
wishes."

At this stage we may observe that taking of a genetic sample without
consent may in some countries e.g. Canada be viewed as a violation of the
person's physical integrity although the law allows such forced taking of
sample. But even this practice was held to be valid when the sample is F
collected by a health care ~1rofessional. Collecting samples from the suspects
for DNA tests in some countries have not been found to be violative of right
of privacy.

In the response of the Privacy Commissioner of Canada to Department
of Justice consultation paper Obtaining and Banking DNA Forensic Evidence. G
it is stated:

"3. Collecting DNA from suspects

DNA evidence should not be collected from a suspect unless the
information is rt:levant to a 5pecific crime in question. For example, H
140 SUPREME COURT REPORTS (2003] 3 S.C.R.

A it would be appropriate to obtain a DNA sample from a suspect
where DNA evidence is left at the scene of the crime and the suspect's
DNA is needed to prove the suspect's involvement.

B
DNA evidence should not be: collected from suspects as a matter of
routine. To do so cause an unnecessary privacy intrusion; in the vast
majority of criminal cases DNA evidence wili contribute nothing to
I
the investigation. Thus, it would not be appropriate for Parliament to
give blanket authority to collect DNA samples from all persons
suspected of indictable offences. DNA should also not be collected
from a suspect if investigators have no DNA evidence with which to
compare the suspect's sample.
c
Nor would a DNA sample from the suspect be necessary if the suspect
admitted guilt.

However, as a practical manner, the DNA evidence might be critically
important in getting the suspect to admit guilt in the first place.
D
As well, there should be reasonable grounds for suspecting that the
person committed the offenc1~ before taking the DNA sample. It would
not be acceptable to require all men in a given community to. submit
DNA samples to solve a specific crime.

E Broadly-based testing of whole groups within a community would
represent an unjustifiable intrusion into the lives of too many innocent
people. As a further privacy safeguard. DNA evidence should be
collected from a suspect only if a judge authorizes the collection.

In our 1992 report, Genetic Testing and Privacy, we discussed limiting
F the collection of DNA samples to cases involving criminal violence.
The types of violence crimes for which DNA samples might be
collect1:d should be set out in legisiation. The list of violent crimes set
out in New Zealand's recently introduced Criminal Investigations
(Blood Samples) Bill offers an example of the types of crimes for
which DNA testing might be considered in Canada. It may also be
G appropriate to allow the collection of samples for other crimes, such
as conspiracies to commit offences involving violence. For example,
it should be lawful for samples to be taken if DNA evidence could
help convict someone suspected of planning a terrorist act or murder
(perhaps the suspect had left DNA on a stamp he licked and attached
H to a letter implicated in the crime)."
SHARDA v. DHARMPAL [S.B. SINHA. J.] 141

The matter may be considered from another angle. In all such A
matrimonial cases where divorce is sought, say on the ground of impotency,
schizophrenia ...... etc. normally without there being medical examination, it
would be difficult to arrive at a conclusion as to whether the allegation made
by his spouse against the other spouse seeking divorce on such a ground, is
correct or not. In order to substantiate such allegation, the petitioner would B.
always insist on medical examination. If respondent avoids such medical
examination on the ground that it violates his/her right to privacy or for a
matter right to personal liberty as enshrined under Article 21 of the Constitution
of India; then it may in most of such cases become impossible to arrive at
a conclusion. It may render the very grounds on which divorce is permissible
nugatory. Therefore, when there is no right to privacy specifically conferred C
by Article 21 of the Constitution of India and with the extensive interpretation
of the phrase "personal liberty" this right has been read into Article 2 I, it
cannot be treated as absolute right. What is emphasized is that some limitations
on this right have to be imposed and particularly where two competing interests
clash. In matters of aforesaid nature where the legislature has conferred a D
right upon his spouse to seek divorce on such grounds, it would be the right
of that spouse which comes in conflict with the so-called right to privacy of
the respondent. Thus the Court has to reconcile these competing interests by
balancing the interests involved.

lf for arriving at the satisfaction of the Court and to protect the right E
of a party to the !is who may otherwise be found to be incapable of protecting
his own interest, the Court passes an appropriate order, the question of such
action being violative of Article 21 of the Constitution of India would not
arise. The Court having regard to Article 2 I of the Constitution of India must
also see to it that the right of a person to defend himself must be adequately
protected. F
It is, however, axiomatic that a Court shall not order a roving inquiry.
It must have sufficient materials before it to enable it to exercise its discretion.
Exercise of such discretion would be subjected to the supervisory jurisdiction
of the High Court in terms of Section 115 of the Code of Civil Procedure
and/ or Article 227 of the Constitution of India. Abuse of the discretionary G
power at the hands of a Court is not expected. The Court must arrive at a
finding that the applicant has established a strong prima facie case before
passing such an order.

If despite an order passed by the Court, a person refuses to submit H
l42 SL'PREME COURT REPORTS (2003] 3 S.C.R.

A himself to such medical examination. a strong case for drawing an adverse
inference would be made out. S. 114 of the Indian !evidence Act also enables
a Court to dra\~ an adverse inference if the party does not produce the
relevant evidences in his power and po,,session.

So viewed, the implicit power of a court to direct medical examination
B of a party to a matrimonial litigation in a case of this nature cannot be held
to be violative of one's right of privacy.

To sum up. our conclusic ns are

I. A matrimonial court has the power to order a person to undergo
C medical test.
2. Passing of such an order by the court would not be in violation
of the right to personal liberty under Article 21 of the Indian
Constitution
3. However. the Court should exercise such a power if the applicant
D 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.

Subject to the observaticns made hereinbefore we are of the opinion
E that the lligh Court cannot be ;aid to have committed a jurisdictional error
in passing the impugned judgment. This appeal is. therefore, dismissed.
However, in the facts and circumstances of the case there shall be no order
as to costs.

F K.K.T. Appeal dismissed.