The Code Of Civil Procedure (Amendment) Act, 1956
The Hindu Marriage Act, 1955
Section 6 in The Hindu Marriage Act, 1955
Section 9 in The Hindu Marriage Act, 1955
The Passports Act, 1967
Andhra High Court
Dr. Kollam Chandrasekhar vs Dr. Kollam Padmalatha on 16 October, 2000
Equivalent citations: 2000 (6) ALD 432, 2000 (6) ALT 94
Bench: B Swamy
ORDER
1. The petitioners in both the transfer applications being wife and husband are seeking transfer of the case of the other spouse to the file of the Court where the case filed by them is pending. They can be disposed of by a common order. Before considering their request, the factual background of this case has to be looked into.
2. Both the parties are doctors and they were married in the year 1995 at Kakinada, and during the wedlock the petitioner in Tr. CMP No.69 of 1999 gave birth to a female child and she is aged about three years. It is seen that the marriage is not a happy one and the petitioner in Tr.CMP No.94 of 1999 i.e., the husband wants to get rid of the wife by contending that this wife is suffering from Schizophrenia. While the husband filed OP No.285 of 1998 on the file of the Family Court, Secunderabad, seeking divorce on the ground that his wife is suffering from Schizopherenia under Section 13 of the Hindu Marriage Act, the wife filed OP No.1 of 1999 on the file of the I Additional Senior Civil Judge, Kakinada, for restitution of conjugal rights under Section 9 of the Hindu Marriage Act.
3. Now, both the parties filed transfer applications seeking transfer of the case filed by the other spouse to the Court in which the case filed by them is pending. When both the matters came up before me, keeping the fact that both of them are doctors, this Court made every effort to save the marriage and tried to find out the seriousness of the disease suffered by the wife by subjecting her to the medical examination, both in the Institute of Mental Health, Government Hospital For Mental Care, Hyderabad, and also in National Institute of Mental Heath and Neuro 'Sciences, Bangalore, a deemed university. While the doctors of Government Hospital, Hyderabad, opined that Dr. Padmalatha is suffering from the disease, they have categorically stated that it is a treatable disorder in the following words:
"Schizophrenic illness is a treatable disorder. The nature of the illness in this particular case is such that it is likely to run a chronic course with episodic exacerbations. However, in this case at present and so far the response to treatment (medication) has been good and the illness is fairly under control."
4. They have also stated that by providing good treatment coupled with good social and family support, Schizophrenic patients can continue their marital relationship.
5. But, Dr. Padmalatha contended that her husband being Assistant Professor in Orthopedics in Government Hospital, could manage to get this report against her, and she filed an application to refer her to the National Institute of Mental Health and Neuro Sciences, Bangalore. A team of three doctors having examined Dr. Padmalatha opined that though the patient has stated that she suffered from depression in August, 1996 for about a month following the death of her brother-in-law, the team could find no evidence suggesting Schizophrenia currently or in the past, based on available information.
6. Secondly, they stated that there is no contra indication in leading a normal conjugal life and there will be no effect on pregnancy. The patient is suffering from hypothyroidism, which appears to be under control with Tablet Eltroxin; she needs to consult an endocrinologist. In case further information about Dr. Kollam Padmalatha's previous condition is available or if she develops any psychiatric symptoms, she may please be referred back for review. From this it is seen that there are divergent opinions on the alleged illness of Dr. Padmalatha and the Court has to take a decision after assessing the evidence adduced by the parties.
7. For the present it is sufficient to observe that though the doctors at Hyderabad opined that Dr. Padmalatha is suffering from the disease, it will not come in the way of family life. Even assuming that Dr. Padmalatha is having the problem, the symptoms of the particular disease is that in certain disturbed conditions, the patient may suffer mental depression. In fact, every human being, depending upon his psychological conditions, will be subject to mental depression and when such a disease is curable, I am of the prima facie opinion that mere sufferance of this disease cannot result in divorce. As opined by the doctors of Andhra Pradesh, good treatment coupled with good social and family support, even Schizophrenic patients can continue their normal life this type of disease can be easily manageable by a couple who are doctors by profession. During the pendency of the proceedings, the wife secured Government employment and she is now working as Medical Officer in PHC, West Godavari District. This fact will amply prove that inspite of the strained matrimonial relationship, she was able to carry on her duties as a doctor. This is yet another aspect that has to be taken into consideration about the seriousness of the disease as it contended by the husband. But unfortunately, the husband has taken an irresistible stand that he is not willing to live with the lady.
8. As all the efforts to sustain the marriage failed, I advised him to enter into a compromise by giving proper maintenance for the child, who is only three years old now. He has not even prepared for paying maintenance in lumpsum to the child. In the result, all the efforts to sustain the marriage as well as settlement of the issue amicably failed, I leave the parties to work out their remedies in the proper Forum.
9. Now, the question is which case has to be transferred to which Court. The law is well settled on this aspect. The Apex Court repeatedly held that the disputes relating to matrimonial disputes have to be dealt with by the Courts, which are easily accessible to the ladies. Apart from that, the marriage was also celebrated at Kakinada, where she instituted the suit for restitution of conjugal rights, and all the witnesses to be examined hail from the places in and around Kakinada.
10. In fact, Mr. J.V. Suryanarayana, Counsel appearing for the husband, categorically stated that his client has no objection for transfer of the case filed by him to the Court where the wife filed petition for restitution of conjugal rights.
11. For all these reasons, I direct that OP No.285 of 1998 filed by Dr. Kollam Chandrasekhar be transferred to the file of I Additional Senior Civil Judge, Kakinada, to be tried along with OP No.1 of 1999 filed by Dr. Padmalatha, the wife.
12. During the pendency of these transfer applications, Dr. Padmalatha, who is the petitioner in Tr. CMP No.69 of 1999 filed CMP No.14463 of 2000 to direct the respondent therein to despsit his passport in the Court pending disposal of the above Transfer CMP by alleging that he is trying for suitable employment in foreign countries and if he is allowed to leave this country during the pendency of matrimonial disputes, irreparable damage will be done to her case and all efforts to sustain the marital relationship will become infrustuous. This application is opposed by the respondents by contending that the husband has no plans to leave this country and that he has taken the passport in the year 1992, and he never made any attempt to leave this country. He has not obtained visa from any other country and that the possibility of Dr. Chandrasekhar leaving the country is remote.
13. But, the Courts should not forget that it is not uncommon for the super specialty doctors to leave the country for better financial prospects and as the parties are residing at two different places, it will not be possible for the wife to keep a watch on the moments of her husband. Nextly, the Counsel for the respondent cannot contend that if his client leave the country without the knowlege of his wife, she will suffer irreparable loss.
14. Further, under Section 6(2) (g) of the Passports Act, 1967, the Court is having ample power in passing an order prohibiting one of the parties to the litigation from leaving the country when such an application is made to the Court. As the respondent himself is saying that he has no intention of leaving the country. I do not see any insurmountable difficulty for him in depositing the passport in the Court. As and when the case is over, he can always collect back the passport and it is for him to leave the country or not. But, I feel that the Court is having a duty to see that he is available to participate in the proceedings for effective adjudication of the dispute. Hence, I am inclined to reject the contentions of the Counsel for respondent.
15. Nextly, the Counsel for the respondent contended that the application filed by the petitioner is beyond the scope of Section 24 CPC. Hence, no order directing his client to deposit the passport can be passed. Under Section 151 CPC the Court is having inherent powers to deal with the situation in the ends of justice, and see that justice in real terms is rendered to the parties. It is not the case of the Counsel for the respondent that Section 151 CPC is not available to a Court exercising powers under Section 24 of CPC. As long as Section 151 CPC is on the Statute book, any Court dealing with any dispute is having inherent power to deal with the issue which is not covered by any of the provisions of the CPC or by the orders made therein to see that a party to the litigation cannot have the last laugh by browbeating the other taking shelter under procedural laws. Accordingly, the objection raised by the respondent Counsel is also rejected. In the light of the view taken by me, Dr. Chandrashekar is directed to deposit his passport in OP No.1 of 1999 pending before the I Additional Senior Civil Judge, Kakinada, within two weeks from the date of receipt of a copy of this order. As the OPs., filed by the parties are pending for more than 18 months, I direct the I Additional Senior Civil Judge, Kakinada, to dispose of the OPs., within six months positively.
16. In the result, the Tr. CMR No.69 of 1999 is allowed and Tr. CMP No.94 of 1999 is dismissed. No costs.
