The Hindu : Medical examination not a violation of privacy: SC

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Wednesday, Apr 02, 2003

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Medical examination not a violation of privacy: SC

By Our Legal Correspondent

NEW DELHI April 1. The Supreme Court has held that a spouse in a divorce proceeding can be directed to undergo medical examination by the matrimonial court and such an order would not violate the right to privacy under Article 21 of the Constitution.

A three-Judge Bench, comprising the Chief Justice V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshmanan, however, said the court should exercise this power only if the applicant had a strong prima facie case and there was sufficient material before the court.

The Bench said if, despite the court order, the respondent refused to submit himself/herself to medical examination, the court would be entitled to draw an adverse inference against him/her.

Mr. Justice Sinha, speaking for the Bench, made it clear that the court should not order a roving inquiry and abuse of the power was not expected. The exercise of such discretion would be subject to the supervisory jurisdiction of the High Court. An appeal had been filed in the apex court against a judgment of the Rajasthan High Court upholding a trial court's order directing medical examination to determine whether the wife was of unsound mind. The apex court framed the question whether a party to a divorce proceeding could be compelled to undergo a medical examination. Dismissing the appeal, the Bench noted that even in the United Kingdom and the United States, it had been held that such laws did not violate the fundamental rights of a citizen. A U.S. court had held that no privilege was absolute, especially when it related to determining the fitness of parents in marriage proceedings.

Citing these decisions, the Bench held that the right to privacy under Article 21 of the Constitution was not an absolute right. ``If there was a conflict between the fundamental rights of two parties, that right which advances public morality will prevail.'' The Bench was of the view that in all matrimonial cases, where divorce was sought on such grounds as impotency and schizophrenia, it would normally be difficult to arrive at a conclusion as to whether the allegation made by a spouse was correct without a medical examination.

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