After wasting opportunities given, the knife moved an application to file Counter but husband opposed it at Karnataka High Court.
From Paras 3-6,
4. However, insofar as the position of law as to whether the opportunity to file the objection statement can be granted subsequent to the expiry of the period as provided under Order 8, Rule 1 of CPC has in fact been stated by the Hon’ble Supreme Court wherein, it is held that it is only directory and not mandatory. The said decision in Salem Advocate Bar Association -vs- Union of India has also been referred to by the Court below.
From Para 5, (Pass an ex-parte order, what are you waiting for?)
5. In the instant case, though the petitioner contends that the respondent has not putforth any justifiable reasons seeking such opportunity, what cannot be lost sight is that the instant case is a matrimonial dispute where personal allegations would be made by the parties. If that be so, unless such personal allegations as made are controverted and thereafter evidence is available before the Court below, the Court in any event cannot come to an appropriate conclusion. Therefore, if in that light, when it is seen that the petition filed by the petitioner is for annulment of the marriage under Section 12 of the Hindu Marriage Act, 1955, it is more so that the petition averments would have to be controverted and thereafter a conclusion is to be reached. Therefore, in that circumstance, in any event, the Court below was justified in allowing the application and taking on record the objection statement.
A Single judge of Karnataka High Court (Dharwad bench) held as thus…
(If it feels like biased/pre-judged, I too felt the same)
20. Having heard the learned counsel for the parties, the following issue arises for consideration in this writ petition. Whether, it is permissible for a Family Court to summon the medical records of a spouse on the request of the other spouse, especially when it pertained to records relating to any procedures relating to the reproductive choices of the spouse?
Illogical Reasoning of the Court:
22. Regulation 7.14 of the Regulation, 2002, upon which, reliance was placed is a reflection of this declaration. The said regulation reads as follows : 7.14. The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his/her profession except
i) in a court of law under orders of the Presiding Judge; ii) in circumstances where there is a serious and identified risk to a specific person and / or community ; and iii) notifiable diseases. In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately.
23. As could be seen in Regulation 7.14 of the Regulations, 2002, there is an absolute embargo on the medical practitioner from disclosing the secrets of a patient that comes within the knowledge of the medical practitioner during the discharge of his professional duties.
24. To this embargo, however, there are three exceptions. The first exception, with which we are concerned, is when a presiding Judge passes an order calling upon the medical practitioner to divulge a secret that he is aware of regarding his patient. Thus, unless there is a specific order of a Judge presiding over a Court of law, no medical practitioner can disclose the secrets that he has become privy to during the discharge of his professional duties.
25. Merely because a Court of law possesses that power to direct the medical practitioner to divulge a secret confided with a medical practitioner, that power would not and should not be exercised merely for the asking or routinely. The power to direct a medical practitioner to act in violation of his declaration should be exercised only for strong and compelling reasons and would be more or less be exercised only when an element of public interest was involved.
26. The Courts, therefore, cannot direct medical practitioners to disclose the secrets that they are privy to Divorce proceeding, by their very nature, is adversarial and more often than not a bitter and acrimonious battle, at times initiated to tarnish the reputation of the warring spouse. Thus, the power of the Court to direct the medical practitioners to divulge secrets that are confided to them should be exercised very sparingly and only for exceptional reasons.
27. In order to get over the bar imposed on the medical practitioners to disclose the secrets of the patients to which they are privy, the Courts should not be asked to exercise their power to secure medical records. If this is permitted, it would mean the Medical practitioner is required to divulge the secrets that the patient has disclosed to him contrary to his professional ethics only because an adversary in litigation wishes to use it to non-suit the other.
28. It is to be kept in mind that the medical records of an individual are very private and are not for public consumption. If the medical record of a person is private to him, a direction to his medical practitioner to produce the medical records or divulge any secret that he is privy to it would essentially amount to infringing the fundamental right of privacy guaranteed to an individual, which emanates from the Right to Life granted under Article 21 of Constitution of India.
Conclusions:
40. The Doctor, even if summoned, cannot by the production of medical records, assist the Court in concluding as to whether the wife had voluntary sexual intercourse with a person other than the husband. If the husband can prove that he had no access to his and if he can establish that his wife had or was having any illicit sexual relationship with another person, the same will have to be established by appropriate evidence as provided under the Evidence Act.
41. In any event, the illicit relationship of a spouse cannot be proved by securing his or her private medical records. In fact, if this approach is to be accepted, it would amount to the destruction of the entire concept of Doctor and patient confidentiality and also drag the Doctor into a marital dispute.
Jan 3, 2022, 05:05 IST
https://timesofindia.indiatimes.com/india/medical-records-private-cant-be-used-to-prove-adultery-karnataka-hc/articleshow/88655481.cms
Jan 3, 2022, 05:36 IST
https://timesofindia.indiatimes.com/city/bengaluru/cant-use-medical-records-to-prove-spouses-relationship-dharwad-bench-of-karnataka-hc/articleshow/88655662.cms
A single judge of Karnataka High Court upheld the law the way it is.
From Para 5,
5. The application is filed admittedly invoking Section 12 ofthe Act. Sub-section (5) of Section 12 of the Act reads as follows: “12. Application to Magistrate.- (5) The Magistrate shall Endeavour to dispose ofevery application made under sub-section (1) within a period of sixty days from the date of its first hearing.” Sub-section (5) mandates that every application filed under the Act shall be disposed of by the Court within six months from the date of its presentation. The order sheet reveals that theapplication was filed on 12-11-2021 seeking maintenance. Six months have passed by. The order sheet does not demonstrateany consideration of the application. Therefore, the petitioner is entitled to a mandamus at the hands of this Court or a directionto the learned Magistrate to dispose of the application for maintenance expeditiously.
A judge from Allahabad High Court used choicest words in this judgment.
From Para 8,
[8] The story narrated in the FIR is not only abhorring, full of dirt, filth and venomous accusations where the informant fiercely abused her own husband and in-laws by using all the ways and means in the tone, tenor and texture in the extreme manner. The graphic and vivid descriptions of the incident without any shame or hitch of any sort which, speaks out volume of mental condition and amount of venom and poison in the mind of the informant. She without mincing any word, rather exaggerating the incident to manifolds, had vomitted the snide before the Court. Interestingly, general and sweeping allegations have been fastened against all the family members for committing sodomy, attempt to rape and illegal abortion etc. upon all the family members with special focus upon her husband, Sahib Bansal.
From Para 12,
[12] The police, after probing the matter in depth, has submitted the charge sheet dropping all the offences, wherein the informant had made wild accusations in the FIR against her husband and his family members. Theaforesaid charge sheet has been filed only under sections 498A, 323, 504, 506,307 IPC and 3 and 4 of D.P. Act. Thus, it is explicitly clear that the FIR is nothing but a virtual canard and full of venom where the informant unmindful of the fact to its far-reachingrepercussions, pasted all the filth upon revisionist in wild manner but was unable to produce any documentary evidence/proof to substantiate thelevelled allegations and thus, all the sections of unnatural/oral sex, forcible abortion have gone to haywire resultantly dropped from charge sheet. Not onlythis, names of Chirag Bansal and Ms. Shipra Jain finds no place in the charge sheet, so filed by the police.
From Para 30,
[30] Yet coming to another aspect of the issue which is disturbing and mind-boggling to the Court. After reading the FIR allegedly lodged by Ms. Shivangi Bansal after 18 days of the incident, which is ever-abhorring,full of dirt and filth. The graphical description portrayed by her in her FIR is deplorable tobe condemned in its strongest terms. The FIR is the place where the informant gives the story mobilizing the State Machinery engaging in the commission ofcognizable offence. It is not soft porn literature where the graphical description should be made. Hon’ble the Apex Court in its judgment in the case of PritiGupta Vs State of Jharkhand, 2010(71) SCC 667 has fastened the liability upon the counsels;
From Para 31,
[31] Therefore, the Court is of the opinion that while deciding the present issue, the Court should not take into these graphical description of the accusation made by thecomplainant and simply over-look these graphic and distressful allegations made by a lady who after receiving legal advice, pasted those dirt and filth upon her husband andother family members. The interesting feature is that she has been unable to substantiate those allegations even at the time of investigation and these allegations were found falseand the sections related to it were dropped. The Court records its strongest exception to such type of language used bythe informant. The language of the FIR should be decent one and no amount of atrocitiesfaced by the informant, would justify her to use such type of castic expressions. FIR/complaint is the gateway of any criminal case even soft and decent expressionwould well communicate the alleged atrocities faced by her.
Guidelines issued from para 35,
[35] Thus, It is directed that :- (i) No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the “Cooling-Period” which is two monthsfrom the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter would be immediately referred to Family Welfare Committe (hereinafter referred to asFWC) in the each district. (ii) Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years. (iii) After lodging of the complaint or the FIR, no action should take place without concluding the “Cooling-Period” of two months. During this “Cooling-Period”, the matter may be referred toFamily Welfare Committee in each districts. (iv) Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority)comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority.
(v) The said FWC shall comprise of the following members :-
(a) a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior most student of Vth year, Government Law College or the State University or N.L.Us. having good academic track record and who is public spirited young man, OR;
(b) well acclaimed and recognized social worker of that district having clean antecedant, OR;
(c) retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR;
(d) educated wives of senior judicial or administrative officers of the district.
(vi) The member of the FWC shall never be called as a witness.
(vii) Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging.
The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee.
(viii) The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorties to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.
(ix) Continue deliberation before the Committee, the police officers shall themselves to avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer shall continue to have a peripheral investigation into
the matter namely preparing a medical report, injury report, the statements of witnesses.
(x) The said report given by the Committee shall be under the consideration of I.O. or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of Code of Criminal Procedure after expiry of the “Cooling-Period” of two months.
(xi) Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of Family Welfare Committee from time to time(not more than one week).
(xii) Since, this is noble work to cure abrasions in the society where tempos of the contesting parties are very high that they would melow down the heat between them and try to resolve the misgivings and misunderstanding between them. Since, this is a job for public at large, social work, they are acting on a pro bono basis or basic minimum honrarium as fixed by the District & Sessions Judge of every district.
(xiii) The investigation of such FIRs or complaint containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonal cases with utmost sincerity and transparancy.
(xiv) When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.
At the cost of repetition, it is made clear that after lodging of the F.I.R. or the complaint case without exhausting the “Cooling-Period” of two months, no arrest or any coercive action shall be taken against the husband or his family members in order to derail the proceedings before the Family Welfare Committee.
Single Judge bench of Justice Anand Venkatesan took strong objection to the Police issuing summons to the advocate who, on instructions of his client Mr. A.Sankar, issued Contempt notice the Police boss, V.Kumar. Police showed their power, Court showed its’.
Single Judge Bench of Delhi High Court held as follows,
What clearly emerges is that in the aforesaid case, the Court was dealing with a situation, where a FIR had already been lodged and a criminal investigation was ongoing against the person against whom theLOC had been issued. The same was the situation in S. Martin v. Deputy Commissioner of Police SCC OnLine Mad 426. In the present case, as has already been noted, no proceedings under any penal law have, in fact, been initiated against the petitioner. These decisions are therefore, clearly distinguishable and do not, in any manner forward the case of the respondents.
Hon’ble Justice K.C. Bhanu had delivered this judgment.
From Paras 4-5,
(4) THE main contention of the learned counsel for the petitioner is that, the first respondent/wife had given up her right to seek maintenance as per agreement dated 16. 11. 1998 and therefore, continuation of the proceedings in the maintenance case is nothing but abuse of process of Court. (5) ON the other hand, the learned counsel for the first respondent contended that, even a divorced wife is entitled for maintenance; that, the agreement and the divorce were obtained by playing fraud; that, even if any such agreement is there, that will not preclude the first respondent herein from claiming the maintenance. In support of his contention, the learned Counsel relied upon various decisions, which will be referred to, at appropriate time.
From Para 12,
(12) THE learned Counsel for the first respondent also placed strong reliance on a decision in Bai Tahira v. AH Hussain Fissalli Chothia and another, AIR 1979 sc 362, wherein it is held thus : (Para10) “the last defence, based on Mehar payment, merits more serious attention. The contractual limb of the contention must easily fail. The consent decree of 1962 resolved all disputes and settledall claims then available. But here is a new statutory right created as a projection of public policy by the Code of 1973, which could not have been in the contemplation of the parties when in 1962,they entered into a contract to adjust their then mutual rights. No settlement of claims whichdoes not have the special statutory right to the divorcee under Section 125 can operate to negate that claim.”
Closure from Paras 14-15,
(14) THEREFORE, from the above decisions, it is clear that, even if there is an agreement which would defeat the provisions of any law, the same cannot be used as a defence in a proceedingsunder section 125 Cr. P. C. (15) IN view of the above decisions, it is clear that even if there is such an agreement where under and whereby the parties relinquished her right to maintain, it would not be a bar to file a petitionunder section 125 Cr. P. C. and therefore, the maintenance case is maintainable and question of quashing the same does not arise.
A single judge bench of Bombay High Court held that if/when the wife gives up or relinquishes her right to claim maintenance at any time in the future through an agreement, such agreement is not enforceable since such an agreement is opposed to public policy.
Submissions from Paras 7-8,
7. Mr. Chavan submits that irrespective of pending Miscellaneous Application No.229 of 2012, and the so called consent decree, any agreement for waiver to receive maintenance is void, since, it is opposed topublic policy. He submits that there can be no agreement in derogation of the provisions of Section 125 of Cr.P.C., since, such provisions have beendesigned as a matter of public policy to protect against destitution and vagrancy. 8. Mr. Chavan relies upon several decisions to point out that evenassuming that right to claim maintenance was voluntarily given up by the wife, that by itself does not bar the wife from seeking maintenance,provided the circumstances prescribed in Section 125 of Cr.P.C. stands fulfilled. For these reasons, Mr. Chavan submits that there is absolutely noerror in the impugned orders and this petition may, therefore, be dismissed.
From Paras 12-13,
12. The consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super-addedto them. Accordingly, if the term of the contract is itself opposed to public policythen, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then,perhaps, the entire contract may fall. 13. There are several rulings, which take the view that anagreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and,therefore, such an agreement, even if voluntarily entered, is not enforceable.The two courts in the present case have basically relied upon such rulings and held that even if it is assumed that the parties hadvoluntarily agreed to give up their time to claim maintenance from eachother, such agreement is opposed to public policy and, therefore, the same is not enforceable, or the same does not bar the maintainability of anapplication under Section 125 of Cr.P.C. There is no jurisdictional error in the view taken by these two courts so as to warrant interference underArticle 227 of the Constitution of India.
