# SHARDA v. DHARMPAL - **Citation:** [2003] 3 S.C.R. 106 - **Court:** Supreme Court of India - **Decided:** 2003-03-28 - **Case number:** Civil Appeal No. 5933 of2000 - **Bench:** V.N. Khare. Cj, S.B. Sinha, Dr. Ar. Lakshmanan - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sharda-v-dharmpal-19084 - **Pages:** 37 ## Headnote 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 examinationHeld: 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 !OALunacy 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, 197 5. Constitution of India, 1950--Article 21-Right to privac)~Order for medical examination by matrimonial Court-Whether violative of the rightF 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 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[ 1.2. For the purpose of grant of a decree of divorce what is necessary D E 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, ther ## Text _Characters 0–38,713 of 85,738. This is a partial read: ask again with offset=38713 for what follows._ A B SHARDA V. DHARMPAL MARCH 28, 2003 [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 examinationHeld: 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 !OALunacy 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, 197 5. Constitution of India, 1950--Article 21-Right to privac)~Order for medical examination by matrimonial Court-Whether violative of the rightF 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 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[ 1.2. For the purpose of grant of a decree of divorce what is necessary D E 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. I 116-E, F; 118-CI B c 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 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 H 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 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. I 129-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. E F (129-C, D; 141-G, H; 142-A, Bl Gautam Kundu v. State of West Ben~a/ and Anr .. 119931 3 SCC 418, distinguished. Birendra Kumar Biswas v. Hemlata Biswas, AIR (1921) Cal. 459approved. 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 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 of Civil Liberties v. Union of India, 1199711SCC301; Govindv. State of Madhya Pradesh and Anr., AIR (1975) B 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 of South Yorkshire, (2003) I All ER 148; Armando Schmerber v. State of California, (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. Halsbury 's Laws of England, Fourth Edition, Reissue, Volume 8(2); Encyclopedia of the American Constitution, Volume 6 al page 2677, referred to. E 2.3. In matrimonial cases where divorce is sought, say on the ground p 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 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. F Lalita Kaushik, for the Appellant. Ms. Nanita Sharma and Vivek Sharma, for the Respondent. The Judgment of the Court was delivered by 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. I 0.1999 the said application was allowed directing the appellant to submit herself to the medical examination, Aggrieved B by the said order, she filed a Revision Petition before the High Court which 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. c D E F G H 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 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 - (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 (c) has been subject to recurrent attacks of insanity; (iii) .. .. (iv) .. .. (v) .. .. 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, - (a) ... (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; 13. DIVORCE. '-· 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) (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 or;" 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 B c D E 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 A. B. Whether passing of such an order would be in violation of Article 21 of the Constitution of India? Power of the Court to direct a party to undergo medical 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: "14. Indeed the caution of a learned author against too readily giving a name to a thing is worth recalling : B "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 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 the latter effort is almost futile once the psychiatrist discovers how conveniently ambiguous these terms really are .... " D E "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 A SUPREME COURT REPORTS [2003] 3 S.C.R. discoverable for therapeutic: planning? And this is language thatcan 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 F G H Law Commission. Sections 23 is to the following terms: "23. Provisions as to scientific t