IN THE SUPREME COURT OF INDIA

IN THE MATTER OF
SHARDA
(APPELLANT)
VS.
DHARMPAL
(RESPONDENT)

MEMORANDUM ON BEHALF OF THE APPELLANT

COUNSEL FOR THE APPELLANT

ANANYA PANDE
SEMESTER – II, SECTION – B
ROLL NO. – 26
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TABLE OF CONTENTS

Contents
LIST OF ABBREVIATIONS ............................................................................................... II
LIST OF AUTHORITIES................................................................................................... III
STATEMENT OF JURISDICTION ..................................................................................... V
STATEMENT OF FACTS .................................................................................................. VI
ISSUES RAISED .............................................................................................................. VII
SUMMARY OF ARGUMENTS........................................................................................ VIII
ARGUMENTS ADVANCED ............................................................................................... 1
I. WHETHER MATRIMONIAL COURT HAS THE POWER TO DIRECT A PARTY TO
UNDERGO MEDICAL EXAMINATION ......................................................................... 1
II. WHETHER THE COURT CAN DRAW ADVERSE INFERENCE AGAINST THE PARTY,
WHO REFUSES TO UNDERGO MEDICAL EXAMINATION............................................... 3
III. WHETHER THE RESPONDENT HAS PROVIDED ENOUGH EVIDENCE, BASIS
ON WHICH THE COURT CAN DIRECT SUCH AN ORDER,.......................................... 4
PRAYER............................................................................................................................ 5

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LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM OF ABBREVIATION

& AND
AIR ALL INDIA REPORTER

HON’BLE HONOURABLE
ORS. OTHERS
Ed. EDITION
Anr. ANOTHER

Art. ARTICLE
Govt. GOVERNMENT
HC HIGH COURT
Hon’ble HONOURABLE

I.E. ID EST (THAT IS)

J. JUSTICE
No. NUMBER
PUB PUBLICATION
S.C.C. SUPREME COURT CASES

Sec. SECTION
V. VERSUS
Vol. VOLUME

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LIST OF AUTHORITIES

BOOKS –

• U.P.D KESARI, MODERN HINDU LAW, (10 th ED. CENTRAL LAW PUB 2015)
• KUSUM, Family Law Lectures - Family Law I, (5 th ED. LexisNexis, 2019)

DICTIONARIES –

• GARNER BRYAN, BLACK’S LAW DICTIONARY (8 th Edition, West Group

Publications)

LEGISLATIONS/ACTS/RULES –

• HINDU MARRIAGE ACT, 1955

• INDIAN EVIDENCE ACT, 1872
• CODE OF CIVIL PROCEDURE, 1908

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LIST OF CASES –

S NO. CASE NAME CITATION

1. Goutam Kundu vrs. State of West (1993) 3 SCC 418
Bengal & another
2. P. Venkataswarlu v. P. Subbayya AIR 1955 ANDHRA 207

3. Bipinchandra Shantilal Bhatt vs AIR 1963 GUJ 250

Madhuriben Bhatt
4. REVAMMA VS. SHANTHAPPA AIR 1972 KANT 157

5. Ranganathan Chettiar vs Chinna AIR 1955 MAD 546

Lakshmi Achi
6. M. Venkatachalapathy vs Saroja (1981) 1 MLJ 440
Alias Thangammal
7. Smt. Ningamma And Another vs AIR 2000 KANT 50
Chikkaiah And Another
8. T. Jagedeeswari vs Anand @ Crl.R.C.No. 1353 of 2007
Mohankumar
9. Alka vs. Ajaykant 2007 ( 4 ) MPLJ 193

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STATEMENT OF JURISDICTION

The Counsel for the appellant humbly submits before the Hon'ble Supreme Court of India, the
Memorandum on behalf of the Petitioner who has filed the civil appeal in pursuance of Article
133 1 of the constitution of India.

1
133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil pr oceeding of a
High Court in the territory of India if the High Court certifies under Article 134A
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause ( 1 ) may
urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this
Constitution has been wrongly decided
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to
the Supreme Court from the judgment, decree or final order of one Judge of a High Court

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STATEMENT OF FACTS

1. The parties herein were married on 26.6.1991 according to the Hindu rites. On or about
3.6.1995, the respondent filed an application for divorce against the appellant under Section
12(1)(b) and 13(1)(iii) of the Hindu Marriage Act, 1955. The respondent (petitioner therein)
contended that the appellant (respondent therein) was of unsound mind and their marriage
was voidable according to section 12(1)(b) as it was in contravention of section 5 of Hindu
Marriage act.

2. The respondent 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 8.10.1999 the said
application was allowed directing the appellant to submit herself to the medical
examination.

3. High Court of Judicature for Rajasthan at Jodhpur in S.B. Civil Revision Petition No.
1414/99 dismissing an application filed by the appellant herein questioning an order of the
Addl. 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.

4. Aggrieved by the said order, the appellant filed a Revision Petition before the High Court
which was dismissed by the impugned judgment.

5. Due to the impugned judgement, the appellant has sought this civil appeal at Hon’ble
Supreme Court of India.

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ISSUES RAISED

1. WHETHER MATRIMONIAL COURT HAS THE POWER TO DIRECT A

PARTY TO UNDERGO MEDICAL EXAMINATION

1.1 WHETHER THE COURT CAN DRAW ADVERSE INFERENCE AGAINST THE
PARTY, WHO REFUSES TO UNDERGO MEDICAL EXAMINATION.

2. WHETHER THE RESPONDENT HAS PROVIDED ENOUGH EVIDENCE,

BASIS ON WHICH THE COURT CAN DIRECT SUCH AN ORDER

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SUMMARY OF ARGUMENTS

1. WHETHER MATRIMONIAL COURT HAS THE POWER TO DIRECT A

PARTY TO UNDERGO MEDICAL EXAMINATION

A court dealing with matrimonial cases cannot subject a party to the divorce
proceedings to undergo medical examination against his/her volition. In the event, if a
party does not undergo such medical examination, the Court cannot draw an adverse
inference.

2. WHETHER THE RESPONDENT HAS PROVIDED ENOUGH EVIDENCE,

BASIS ON WHICH THE COURT CAN DIRECT SUCH AN ORDER

The court in order to direct such an order, the respondent should have a strong prima
facie case for unsoundness of mind of appellant. The appellant hereby submits that the
respondent has not made out a case for unsoundness of mind as required by the statue
and for the same reasons the marriage between the parties cannot be dissolved.

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ARGUMENTS ADVANCED

I. WHETHER MATRIMONIAL COURT HAS THE POWER TO

DIRECT A PARTY TO UNDERGO MEDICAL EXAMINATION

1. Under Hindu Marriage Act, 1955 or any other related law there is no express provision
empowering the Court to issue a direction upon a party to a matrimonial proceeding to
compel him to submit himself to a medical examination. Since there is no legislation
empowering the matrimonial courts to subject a party to undergo medical examination
the onus to bring clarity to this matter was left to the apex court,
The apex court in Goutam Kundu vrs. State of West Bengal & another 2 in para 18
& 26 observed as follows –
“18. Blood grouping test is a useful test to determine the question of disputed paternity.
It can be relied upon by courts as a circumstantial evidence which ultimately excludes
a certain individual as a father of the child. However, it requires to be carefully noted
no person can be compelled to give sample of blood for analysis against his/her will
and no adverse inference can be drawn against him/her for this refusal.
26. From the above discussion it emerges-
(1) 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 prima facie case in that the husband must establish non-
access in order to dispel the presumption arising under Section 112 of the Evidence
Act.
(4) ……………………………………………………………
(5) No one can be compelled to give sample of blood for analysis."
2. Thus, after observing the above judgement in Goutam kundu(supra)3 it can be
concluded that court in India cannot order blood test as a matter of course, there must
be strong prima facie case to order a test and the court must examine the consequences

2
(1993) 3 SCC 418
3
Ibid

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of ordering such test. And if a party refuses to undergo such a test, no adverse inference
can be drawn against him/her for this refusal.
3. In a judgement by madras high court in P. Venkataswarlu v. P. Subbayya,4 it was
held that Section 151 5 was introduced to give effect to the inherent powers of the Court
but that such powers could only be exercised ex debito justitiae and not on the mere
invocation of the parties or the mere volition of the Courts and it was stated that there
was no procedure either in the Civil Procedure Code or the Evidence Act which
empowered the court to pass an order to submit any party to a blood test.
4. In case of Bipinchandra Shantilal Bhatt vs Madhuriben Bhatt 6, it was held that in
the absence of any such provisions, it was not open to a party to compel the other party
to undergo medical examination. In another case7 it was held that where a party alleges
that a person is impotent or suffering from other such incurable disease, it is for the
person making such an allegation to prove the same. A party cannot be compelled to
undergo medical examination.
5. Same stance has been taken by madras high court in case of Ranganathan Chettiar vs
Chinna Lakshmi Achi8, it was held that no person can be forced to undergo a medical
examination without its consent and to pass such an order is tantamount to treating a
human being as a material object, which no court should do under its inherent power.
6. The same as aforesaid judgements has been reiterated by J. V. Ratnam in M.
Venkatachalapathy vs Saroja Alias Thangammal 9, he held that it is settled law that
a person cannot be directed to be examined medically against her wish.

4 AIR 1955 Andhra 207

5 Saving of inherent power of court - Nothing in this Code shall be deemed to limit or otherwise affect the inherent
power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the
process of the Court.
6 AIR 1963 Guj 250 - There is no provision under the Hindu Marriage Act or the rules framed thereunder, or in

the Code of Civil Procedure, or the Indian Evidence Act or any other law which has been brought to my notice
which would show any power in the Court to compel any party to undergo medical examination. A compulsion
to undergo medical examination is certainly an interference with the personal liberty of a citizen and such personal
liberty could only be interfered with under the provisions of any penal enactment or in the exercise of any other
coercive process vested in the Court under the law
7 Revamma vs Shanthappa, AIR 1972 Kant 157 - There is no provision under the Hindu Marriage Act or the Rules

framed thereunder, or in the Code of Civil Procedure or in the Indian Evidence Act or any other law which would
show any power in the court to compel any party to undergo medical examination.'' A medical examination for
ascertaining whether a person is insane or important are all cases in which unless by the law of the land a person
can be compelled to undergo medical examination, an order directing a person to undergo medical examination
would be clearly illegal and without jurisdiction.
8
AIR 1955 Mad 546
9 (1981) 1 MLJ 440

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7. Thus, the appellant humbly submits that the matrimonial court had no right to order a
person to undergo medical examination, and any order in contravention of it is illegal
and without jurisdiction.

II. WHETHER THE COURT CAN DRAW ADVERSE INFERENCE AGAINST THE
PARTY, WHO REFUSES TO UNDERGO MEDICAL EXAMINATION.

1. The court should not draw any adverse inference on the basis of appellant’s refusal to
undergo medical examination that may affect the divorce proceedings between the
parties. The supreme court in Goutam kundu 10(supra) case observed that no adverse
inference can be drawn against the person who refuses to take blood test.

2. In another case of Smt. Ningamma And Another vs Chikkaiah And Another 11 had
held that the lower court was in grave erroe to draw an adverse inference against the
party who refused to undergo medical examination. The court observed –

The order impugned, as such, is without jurisdiction and against the spirit of law and the one
passed without due application of mind to the relevant provisions of the Evidence Act and the
provisions of Article 21 of the Constitution of India referred to above and per se appears to be
an order without jurisdiction as well as suffers from jurisdictional error amounting to illegality
on the part of the Court as well. The order having got tendency to jeopardise the fundamental
right of personal liberty conferred under Article 21 of the Constitution of India deserves to be
set aside and is hereby set aside.

Thus in view of abovementioned judgements the appellant submits that the court has
no jurisdiction to draw an adverse inference against the party refusing medical
examination

10
Ibid - Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied
upon by Courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the
child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis
against her wilt and no adverse inference can be drawn against her for this refusal
11 AIR 2000 Kant 50 -The Court below observed illegally that failure or refusal to surrender to medical test will

result in raising adverse presumption against the party when in view of Section 112 read with Section 4 of the
Evidence Act, every sort of evidence, other than referred in Section 112 is barred and closed including presumptive
circumstantial evidence under Section 114 and then the presumption cannot be raised und er Section 114 from the
failure to surrender. Further threat to raise such adverse presumption in such case will amount to interference with
fundamental right under Article 21 of personal liberty by implicitly forcing an unwilling person to undergo the
medical test i.e., blood group test against his wish and against his or her free will and liberty.

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III. WHETHER THE RESPONDENT HAS PROVIDED ENOUGH

EVIDENCE, BASIS ON WHICH THE COURT CAN DIRECT SUCH
AN ORDER,

1. Under section 13 12, the marriage between two parties can be dissolved only when the
other party has been incurably of unsound mind and the mental disorder is of such kind
and to such an extent that other person cannot reasonably expected to live with the
respondent.
2. In case of T. Jagedeeswari vs Anand @ Mohankumar 13 it was held that very high
degree of proof is required to enable the Court to grant divorce on the ground of
unsoundness of mind. All mental abnormalities are not recognised as grounds for grant
of decree. If the mere existence of any degree of mental abnormality could justify
dissolution of a marriage few marriages would, indeed, survive in law.
3. In case of Alka vs. Ajay kant14 of it was held that 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.
4. Thus, the appellant contents that the respondent has not provided enough evidence and
his case is prima facie not strong for the court to order medical examination of the
appellant.

12 13. Divorce :
(1) Any marriage solemnised, whether before or after the 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)..............
(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 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. the other
portions of Section 13 are not relevant for our purposes
13
Crl.R.C.No. 1353 of 2007
14 2007 ( 4 ) MPLJ 193

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PRAYER

In the lights of the facts stated, authorities cited, and the arguments advanced, may this hon’ble
court be pleased to –

1. Dismiss the order passed by high court

2. In the alternative adjudge and declare
3. That the matrimonial court does not have power to direct a person to undergo medical
examination in this case.
4. That lower court cannot draw adverse inference against the appellant.
AND/OR

pass any order or decree in the favor of the plaintiff as the Court may deem fit in the lights of
Justice, Equity & Good Conscience.
All of which is most humbly prayed.

Sd. /-
(Counsel for the Respondent)

Place:
Date:

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