SUPREME COURT OF INDIA

Before:- D.M. Dharmadhikari and B.N. Srikrishna, JJ.

Civil Appeal Nos. 2418-19 of 2005 (Arising out of SLP(C)Nos. 6074-6075/2005). D/d. 4.4.2005.

Radhika Gupta - Appellants

Versus

Darshan Gupta - Respondents

Hindu Marriage Act, 1955, Section 13(1)(iii) - Special Marriage Act, 1954, Section 27(1)(e) Parsi Marriage and Divorce Act, 1936, Section 32(bb) - Evidence Act, 1872, Sections 135, 138 and 145 - Divorce sought by husband on the ground of mental illness of wife - Direction by High Court that wife first gave evidence on affidavit and thereafter appeared for cross-examination and then to be referred for medical examination by expert - Proper procedure to be adopted by High Court was to allow her to undergo medical examination if so desired and thereafter give her oral evidence, if she so liked to do so.

[Paras 3 and 4]

ORDER

D.M. Dharmadhikari, J. - Leave granted. Heard learned counsel for the parties.

2. These appeals filed by the wife arise out of common impugned judgment of the High Court passed in matrimonial proceedings for divorce instituted by the husband on the ground of alleged mental illness of the wife. The High Court, in the operative part of its order, has made the following directions:

"That the wife shall give her chief-examination on affidavit by 12th March, 2005 and shall appear before the trial court on 19th March, 2005 and be cross-examined, preferably in camera. After her statement is recorded, she shall be referred for medical examination by the experts. The revision petitions are accordingly disposed of. No costs."

3. Learned counsel appearing for the wife submits that the wife should be first allowed to produce medical evidence of her mental fitness and it is only thereafter she should be given an option to enter into the witness box to oppose the case and evidence led by the husband. We have also heard learned counsel appearing for the husband who has made some efforts to support the impugned directions contained in the order of the High Court. In our opinion, in law the wife has an option to decide in what manner she would oppose the ground of mental illness alleged against her. The High Court erred in directing that she would first give evidence on affidavit as her examination-in-chief and thereafter appear for cross-examination. The proper course which ought to have been adopted by the High Court was to allow her to undergo medical examination, if she so desired, and thereafter give her oral evidence, if she so liked to do. The rigid procedure for recording evidence as directed by the High Court is unwarranted in law and particularly in matrimonial proceedings of the nature

4. For the reasons aforesaid, we set aside the impugned part of the direction contained in the order of the High Court quoted above. The matrimonial court shall allow the wife to produce her medical evidence and thereafter she will have an option to give her oral evidence.

5. Learned counsel for the appellant has pointed out that during the pendency of these appeals, the Family Court has closed the evidence of the wife. In such circumstances, it is open to the wife to file a proper application before the Family Court with a request to re-open her case for enabling her to lead her evidence.

6. The appeals are allowed accordingly.

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