Karnataka High Court Declines Wife's Plea To Examine Husband Allegedly Diagnosed With 'Missing Brain' Condition Amidst Pending Divorce Case

The Karnataka High Court has dismissed a petition filed by a doctor-wife questioning the rejection of her application by the Karnataka Medical Council wherein she had sought to appoint an Expert Committee to examine her husband, also a doctor, who was allegedly diagnosed as suffering from a porencephalic cyst (missing brain).

A single judge bench of Justice M Nagaprasanna dismissed the petition filed by the estranged wife. However, it clarified that the issue could be kept open to be urged at a later point in time if the need arises.

The couple got married on 18-06-1998, and it was the petitioner's case that her husband was diagnosed as suffering from a porencephalic cyst (missing brain) on 22-06-2004. Following this, the relationship between the petitioner and the 2nd respondent floundered and they moved the family court seeking a divorce, proceedings of which were pending.

During the pendency of those proceedings, a complaint was registered by the petitioner against her husband before the Medical Council. On 21-05-2022 the Council rejected the application of the petitioner, following which she approached the High Court which set aside the order of the Council rejecting the application of the petitioner and remitted the matter back to the Council.

Before the Council, the petitioner filed three applications – (i) to appoint an Expert Committee to examine the husband; (ii) for recusal of the Assessor who participates in the proceedings and (iii) to change the Advocate on record. All three applications were rejected by the Council, and she approached the court.

It was argued that the examination of the husband by a Committee of Experts of NIMHANS of AIIMS is imperative, as none of them in the Council were experts to decide on the complex problem of the 2nd respondent. Therefore, it was stated that the application was filed for reference or seeking the help of an Expert Committee, and the rejection of the application was on the face of it, erroneous.

Further, it was submitted that the Assessor cannot participate in the proceedings as Rules do not empower him to do so. Therefore, he should be recused from the proceedings as he is a retired District Judge who cannot adjudicate the conflict, it was stated.

The Medical Council opposed the plea saying that in terms of law what is necessary is a quorum for conducting proceedings which is followed. Every other allegation, according to the learned counsel, is a figment of the imagination of the petitioner, it was submitted.

The husband contended that it is the entire case of the petitioner that he was diagnosed with the aforementioned problem in 2004, but she did not complain till 2016, the year in which the marital discord between the petitioner and the 2nd respondent emerged.

It was stated that the husband is a reputed Nephrologist and sees about 100 patients in a day and none of the patients till today have complained of any problem before any fora. Therefore, it is a pure marital discord that is projected by dragging the Council into the problem, it was argued.

Findings:

Considering the application filed by the petitioner seeking a direction for the purpose of recusal of one retired Judge Basavaraj Sappannavar on the score that he had adjudicated the dispute on a previous occasion, the court referring to Section 18 of the Karnataka Medical Registration Act, 1961 said “The Advocate appointed is only as an Assessor and not an adjudicating authority in terms of Section 18. Therefore, there can be no question of his recusal in the proceedings. No fault can be found with the reason rendered by the Council to reject the application.”

Regarding the application for reference of the problem faced by the husband to a Committee comprising of Neurologists or Neurosurgeons like NIMHANS or AIIMS, the court said “The application is preferred on the score that the present inquiry being conducted by the Committee is not proceeding in the right direction. The proceedings are still on. The petitioner has now finished examination-in-chief and is being cross-examined.”

Then it said “It is the case of the petitioner that the alleged problem has cropped up yesterday. The CT scan that the learned counsel for the petitioner seeks to place reliance upon is of the year 2004. When 20 years have passed by with the alleged problem of the husband, at least one complaint should have emerged from any patient whom the husband/2nd respondent has treated. It is an admitted fact by the learned counsel for the petitioner that there is no complaint by any patient for the last 26 years of the husband's practice. Therefore, at this juncture reference of the case of the husband to a Committee of neurosurgeons for the asking of the petitioner would not arise.”

Accordingly, it dismissed the wife's plea.

Appearance: Advocate Gopi Karunakaran, for the petitioner.

Advocate Ratna N. Shivayogimath for R1.

Advocate Ajay Kadkol, for R2.

Citation No: 2024 LiveLaw (Kar) 259

Case Title: X AND Karnataka Medical Council & ANR

Case No: WRIT PETITION No.4617 OF 2024

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