Madras High Court
Jebi Victoria vs J.Swamidoss on 17 July, 2023
Author: R.Vijayakumar
Bench: R.Vijayakumar
CMA(MD).No.149 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 23.06.2023
PRONOUNCED ON : 17 .07.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.149 of 2017
Jebi Victoria ... Appellant
vs.
J.Swamidoss ...Respondent
PRAYER:- Civil Miscellaneous Appeal filed under Section 76 of Mental
Health Act 1987, to set aside the order and decreetal order dated
14.07.2016 in MHOP.No.6 of 2013 on the file of the I Additional District
Judge, Madurai and allow the appeal as prayed for.
For Appellant : M/s.AL.Gandhimathi
Senior Counsel
For Mr.C.Mahadevan
For Respondent : Mr.Isaac Mohanlal
Senior Counsel
For Mr.T.Cibi Chakaraborthy
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CMA(MD).No.149 of 2017
JUDGMENT
The above appeal has been filed by the petitioner in M.H.O.P.No.6 of 2013 on the file of the I Additional District Court, Madurai challenging an order under which her request to appoint herself as a guardian to care of her husband and to appoint her as the Manager of the estate of her husband and consequentially prayed for restraining her father-in-law from obtaining any documents from her husband was rejected.
2.M.H.O.P.No.6 of 2013 has been filed by the wife Jebi Victoria arraying her father-in-law as respondent. The said application has been filed under Sections 50,52, 53 & 54 of the Mental Health Act, 1987.
3.Summary of the contentions of the petitioner are as follows:
(i).The petitioner had got married to the respondent's son on 22.02.1990 as per Christian rites and customs. As a result of wedlock, a female child by name Vijeyta was born 05.07.1991 and a male child by name Vivian was born to them on 17.02.1998.
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(ii).The respondent(father-in-law) had given 30.10 cents of land to the petitioner's husband on 10.12.1999 in which the petitioner's husband had built a dwelling house after raising loan from the Bank. Since there was default in repayment of the loan, proceedings were initiated before the Debt Recovery Tribunal.
(iii).The respondent cunningly got back 10 cents of gifted land from his son by taking advantage of the mental illness of his son. The husband of the petitioner had sold away 1.25 acres of lands for a paltry sum of Rs.36.10 lakhs and it would clearly establish that he was not in a proper mental condition to deal with the transactions.
(iv).When the petitioner's husband made a trip to Germany in the year 2000, due to mental illness, he was admitted in a Government Hospital for treatment. The petitioner alone got him back to India.
(v).From the year 2006 onwards, the husband is living in Chennai and leaving the petitioner and her children in Madurai. In Chennai, he was leading a reckless life and was indulging in illegal activities. A civil suit came to be filed as against the petitioner's husband to evict him from the premises for non payment of rent. While the husband was staying 3/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 alone in a flat in Tailors Road, Kilpauk, Chennai, he was leading an immoral life and he picked up quarrel with the apartment secretary. He fired a warning shot to the roof using a pistol and brandished the weapon. This resulted in filing of an F.I.R in Crime No.384 of 2013 under Arms Act along with other provisions of I.P.C. The petitioner's husband was arrested and admitted in Kilpauk Mental Hospital. He was released on bail accepting his mental illness and the undertaking given by the petitioner, the respondent and the brother of the petitioner's husband. There was a bail condition that he should be properly taken care of and should be prevented from committing injury to anyone and he should appear in the Court whenever required. However, the petitioner's husband's brother Sudhakar Jayaraj did not make any arrangement to give treatment. Hence, the petitioner was constrained to withdraw the undertaken given to the Court and made a representation to the Superintendent of Police, Madurai Rural.
(vi).The respondent and her brother-in-law are arranging to sell the house property which is described in the schedule to appropriate the money and to leave the petitioner, her husband and her children in lurch. 4/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017
(vii). If her husband and his property are left in the custody of the respondent, he would reduce her husband as a living vegetable by not giving any treatment to him and also would sell the house for a throw away price or get a gift settlement deed in his favour.
(viii).The petitioner's husband is incapable of taking care of himself and managing his property, the respondent is trying to alienate or encumber the property. Therefore, to safeguard the person and property of the petitioner's husband, the present petition has been filed under Mental Health Act to conduct inquisition into the mental condition of the petitioner's husband, to make an order appointing the petitioner as guardian for the person and the custodian of the property. The petitioner had also prayed to restrain the respondent from obtaining any document from the petitioner's husband in respect of the schedule mentioned property.
4.Summary of the contentions of the respondent are as follows:
(i). The respondent is the father-in-law of the petitioner and the father of Vijaykar @ Vijaykar Packiaraj. He had disputed all the allegations made in the petition. He had contended that only the 5/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 petitioner had caused mental agony to the respondent by not allowing the children to visit the respondent and his wife. In fact, he had never interfered in the domestic relationship between the petitioner and her husband. It is true that in the year 2000, when Vijaykar @ Vijaykar Packiaraj had suffered mental depression, he was admitted to a hospital in Germany. With the help of his friends in Germany, Vijaykar came back to India. Till 2013, there was no problem and he was mentally and physically a normal person.
(ii).It is further contended that the said Vijaykar @ Vijaykar Packiaraj was totally neglected, humiliated and tortured by the petitioner.
From the year 2006, the said Vijaykar was completely deserted by the petitioner. Hence, he was again affected during May 2013 by bipolar mood disorder and he was implicated in a criminal case. He was admitted in the Mental Hospital at Kilpauk under the orders of the Court. But, later he was released on bail with certain conditions. The elder brother of Vijaykar stood as surety along with the petitioner. However, the petitioner had withdrawn her surety on a later date forcing the elder brother of Vijaykar to offer some other security.
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(iii). As directed by XIV Metropolitan Magistrate, Egmore, Chennai in his bail order, Mr.Vijaykar was admitted in a private clinic in Chennai for a short time and later, he was shifted to Madurai and started residing in a house belonging to his brother. Since the petitioner had refused to permit Vijaykar into her home, he was forced to reside in an independent house belonging to his brother. The said Vijaykar is regularly consulting Dr.N.Gandhirajan at Madurai and the monthly reports are being submitted to the Judicial Magistrate, Egmore.
(iv). It is further contended that after the unfortunate incident in the year 2013, there was no problem thereafter. Even the said incident had happened only due to the cumulative affect of ill treatment, desertion by the petitioner and due to separation of the children from him. The respondent had further contended that while Vijaykar was in hospital, the petitioner had never cared to visit him. The petitioner had addressed a letter to the police officials in Chennai requesting them not to drop the charges as against the husband and to cancel the driving licence. Therefore, the petitioner alone acted as against the interest of her husband. The present application has been filed only to grab the palatial 7/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 house owned by Vijaykar.
(v).It is further contended that the petitioner had filed M.C.No.36 of 2013 before the Special Mahila Court, Madurai under Domestic Violence Act seeking maintenance and to prevent him from entering into the house. Now the present petition has been filed to declare Vijaykar as insane person.
(vi).The further contention of the respondent is that the said Vijaykar is mentally and physically fit to take care of himself and of his property. Therefore, the present petition is not maintainable either on facts or on law. Hence, he prayed for dismissal of the said application.
5.The petitioner's husband namely Vijaykar @ Vijaykar Packiaraj had filed IDOP.No.26 of 2013 before the I Additional District Court, Madurai seeking divorce on the ground of mental cruelty. Pending said divorce petition, the wife had filed I.A.No.279 of 2014 under Order 32 Rule 2 of C.P.C to strike off the petition on the ground that it has been filed by a person not keeping good mental health. During pendency of the said I.A, the learned I Additional District Judge, Madurai had 8/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 directed the said Vijaykar @ Vijaykar Packiaraj to appear before the Medical Board. The Director of Institute of Mental Health, Kilpauk after examining the said Vijaykar, had submitted a report that he is fit for trial. Based upon the said information, I.A.No.279 of 2014 was dismissed. Challenging the same, the petitioner herein had filed C.R.P.(MD).No. 2711 of 2015. After hearing both parties, the learned Judge without making any observation on merits, had directed the I Additional District Judge, Madurai to dispose of M.H.O.P.No.6 of 2013 and I.D.O.P.No.26 of 2013 simultaneously on merits. This Court had also left open the issue relating to mental health of Vijaykar @ Vijaykar Packiaraj and directed both the parties to adduce oral and documentary evidence. In view of the said order, the learned I Additional District Judge had considered the report of the Medical Board issued by the Director of Institute of Mental Health, Kilpauk in the MHOP. The said reports were marked as Exhibits P1 and C1 before the Court.
6.The Doctor who had given treatment to Vijaykar was examined as PW2. Based upon the medical report and the evidence of the Doctor, the learned Judge had arrived at a finding that the bipolar mood disorder 9/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 is only a temporary mental condition and the said Vijaykar has not suffered from any relapse from the year 2013 onwards. The learned District judge had further found that the said Vijaykar is capable of taking care of himself and administering his business. Only during the period of illness, if any, he may require some assistance. Whether assistance is required or not and the nature of the assistance required can be ascertained only when such episodes occur.
7.In view of the above said facts, the trial Court found that the said Vijaykar @ Vijaykar Pakiaraj does not suffer from any mental illness presently and proceeded to dismiss the said application. Challenging the said order, the present appeal has been filed by the petitioner/wife. Submissions of the learned Senior Counsel appearing for the appellant:
8.The learned Senior Counsel appearing for the appellant had contended that the couple got married in the year 1990 and they are living apart from the year 2006 onwards. The mental illness seems to have appeared even before the date of marriage and it was suppressed at the time of marriage. After marriage, due to his mental imbalance, 10/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 Vijaykar was selling away the properties for a throw away price and he was incurring loss in whichever business he was involved. In the year 2000, when he was in Germany, due to his mental illness, he had to be admitted in a hospital and he was brought back only with the help of the appellant herein. Again another incident took place in the year 2013, which resulted in filing of a criminal case under the Arms Act.
9.The learned Senior Counsel had further contended that though the appellant had originally stood as surety, she was constrained to withdraw the said surety, in view of the fact that the husband was not under the care of the wife, but he went into the hands of his parents and his brother. Since her husband having gun licence, for her and her children safety, she has not permitted him to return to the matrimonial home.
10.The learned Senior Counsel for the appellant had further contended that taking advantage of his illness, the father and brother of her husband are attempting to alienate the immovable property standing in the name of her husband so as to leave the appellant and her children in lurch.
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11.The learned Senior Counsel had further contended that the medical report clearly points out that he was using cigarettes and alcohol and living alone, so he is at the risk of relapse. The medical officer further recommended to have guardianship during the illness episodes. The learned Senior Counsel referred to the evidence of the Doctor and contended that the Doctor had admitted in his evidence that Vijaykar had suffered from bipolar disorder and it cannot be predicted whether there will be a relapse or not.
12.The learned Senior Counsel had further pointed out that only depending upon relapse, it could be decided whether guardianship is required to take care of him or not. Therefore, according to the learned Senior Counsel, the medical report and the deposition of the Doctor clearly point out that there is a possibility of relapse. The trial Court has not properly appreciated the evidence and had arrived at an erroneous finding that the said Vijaykar is of capable taking care of himself and of his property. If guardian is not appointed, there is every possibility of relapse of the said disorder. Not only to protect the rights of the appellant, but also to protect the rights of her children and the said 12/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 Vijaykar, it is all the more necessary to appoint her as guardian for the person and for the property.
Submissions of the learned Senior Counsel appearing for the respondent:
13.Per contra, the learned Senior Counsel appearing for the respondent had contended that the couple had got married in the year 1990 and for the next 10 years, there was no complaint as against the husband. In the year 2000, when the husband had visited Germany, he is said to have been affected by bipolar disorder and he was safely brought back to India with the help of his friends and relatives. There was no issue relating to his mental health till 2013. The occurrence got repeated in the year 2013 only because of the fact that the wife had prevented him from visiting the matrimonial home and kept the children away from him. Therefore, from the year 2006, the said Vijaykar is residing alone in a flat belonging to his brother. A person suffering from bipolar disorder requires care, attention and love of the family members and friends. The appellant herein had not only prevented the husband from entering into the matrimonial home, but also sought order from the Judicial Magistrate 13/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 Court to prevent him from meeting her children or entering into the property.
14.The learned Senior Counsel had further contended that the incident which took place in the year 2013 was compromised between the parties and it was quashed. However, the wife had chosen to address a letter to the police officials not to let off her husband and to transfer the case to CBCID and to cancel the driving licence. Therefore, from the year 2013 onwards, the appellant has been acting against the interest of the husband. In fact, she had withdrawn the securty to the Judicial Magistrate while he was let on bail in the year 2013 incident.
15.The learned Senior Counsel had further contended that the medical report and the evidence of the Doctor pointed out that it is a temporary phenomenon. If he is under regular treatment, he is capable for taking care of himself and also administer the property. He had further contended that the trial Court had examined the said Vijaykar in person and has come to a conclusion that he has not suffered from any mental disorder requiring for an appointment of guardianship. Hence, he prayed for dismissal of the appeal.
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16.I have considered the submissions made on either side and perused the materials available on record.
Discussion:
17.Though various allegations have been made as against the respondent (father-in-law) and her husband, this Court is of the opinion that those allegations would be irrelevant for considering the fact whether Mr.Vijaykar requires a guardian to be appointed to take care of himself and for administration of his property or not.
18.The appellant had contended that due to his husband's mental ill-health, he had sold away a property in Kodai-Road for a paltry sum which has been disputed by the respondent. The appellant during cross examination had categorically admitted that she has not filed any document to establish the fact that the properties were sold for a lesser value. Though it is alleged that the respondent had got back 10 cents of lands from his son, that is also not proved through any document. Therefore, the allegation of the appellant that her husband is not able to administer his property properly and his father and other relatives are taking advantage of them has not been established before this Court. 15/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017
19.It is not in dispute that the appellant's husband is suffering from bio-polar disorder at least from the year 2000 onwards. The allegation of the appellant that her husband was involved in an incident in Germany in the year 2000 and he was admitted to a mental hospital therein is admitted by the respondent in the counter. It could also be seen from the records that the Vijaykar was residing with his parents and relatives in Chennai from the year 2000 to 2006. Again in the year 2013, he was arrested in Crime No.384 of 2013 for firing a warning shot with a pistol in view of the quarrel he picked up with the apartment secretary. Under the direction of the learned XIV Metropolitan Magistrate, Egmore, Chennai, he was admitted to Kilpauk Mental Hospital. The petitioner, respondent and Mr.Vijaykar's brother stood as sureties for grant of bail. In the deposition, the appellant had admitted that she has not met her husband after he was released on bail.
20.The medical report marked as Exhibit C1 dated 11.04.2015 indicates that Mr.Vijaykar is on inadequate dose of medications and he is having lack of insight into the illness behavior. The report further points out that he is at the risk of relapse and the report has recommended to 16/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 have guardianship during the illness episodes. The Doctor who had treated Mr.Vijaykar was examined as PW2. She had categorically stated that Mr.Vijaykar suffers from bipolar disorder and it is a temporary mental illness. The Doctor had further pointed out that since Mr.Vijaykar is under continuous treatment, there is a lesser possibility of relapse. After 2013, the relapse has not appeared. The Doctor had further pointed out that on examination, his mental health was good and there are no indications of any illness. Mr.Vijaykar has brought all the medicines and prescription during the examination. The Doctor had further stated that the said Vijaykar is capable of taking care of himself and his properties. Whether Mr.Vijaykar requires a guardian or not can be decided only when the ill heath reappears and that too depending upon the nature of illness.
21.A co-joint reading of the recommendations in the medical report dated 11.04.2015 and deposition of the Doctor dated 14.06.2016 would clearly disclose that after 2013, there was no relapse and Mr.Vijaykar is taking care of himself and administering his property. 17/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017
22.As far as declaring a person to be a mentally ill person is concerned, the medical report and the evidence of the Doctor have to be given more weightage than the allegations made by the appellant herein.
23.The learned trial Judge had pointed out that even if Mr.Vijaykar suffers from any mental instability in future, his well wishers are entitled to file a petition to appoint themselves as guardian during the period of illness and Mr.Vijaykar had not indulged any violent activity after 2013 for the past 10 years. The trial Judge had examined Mr.Vijaykar in person on 26.04.2016 and has recorded that he is capable of taking care of his day to day activities and he is driving his own Car. Apart from that, Mr.Vijaykar is also taking care of his brother's property.
24.The Hon'ble Division Bench of this Court in a judgement reported in (2018) 4 LW 748 (Naim Tabriz Khan and others Vs. Sofia Nishath Shahjahan), it was alleged by the husband that the wife has been diagnosed as schizophrenia, bipolar, bipolar mixed and major depression and therefore, she is not entitled to have the custody of two minor children. Rejecting the said contentions, the learned trial Judge has granted custody in favour of the wife. The said order has been confirmed 18/20 https://www.mhc.tn.gov.in/judis CMA(MD).No.149 of 2017 by the Hon'ble Division Bench. Therefore, it is clear that a person suffering from bipolar disorder, is not only capable of taking care of himself, but can take care of the minor children also. When a person with a bi-polar disorder can be appointed as a guardian for the minor children, this Court does not find any necessity for appointing a guardian to a person with bipolar disorder.
25.In view of the above said facts, this Court does not find any merit in the appeal and this Civil Miscellaneous Appeal is dismissed. No costs.
17.07.2023
Index : Yes/No
Internet : Yes/No
msa
1.The I Additional District Judge,
Madurai
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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CMA(MD).No.149 of 2017
R.VIJAYAKUMAR,J.
msa
Pre-delivery order made in
C.M.A(MD)No.149 of 2017
17.07.2023
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