Himachal Pradesh High Court
Sirestha Devi & Anr vs Asha Kumari on 11 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 295 of 2018
Decided on: 11.07.2018
Sirestha Devi & Anr. ...petitioners
.
Versus
Asha Kumari ...Respondent
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.
For the Petitioner: Mr. Pritam Singh Chandel, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
r to This petition under Section 482 of the Criminal Procedure Code takes exception to the judgment passed by the learned Additional Sessions Judge, on 16.03.2017, whereby he affirmed the judgment passed by the learned Additional Chief Judicial Magistrate, whereby the petitioner was directed to pay Rs.50,000/- (Rupees fifty thousand) to the aggrieved party by way of compensation in proceedings under the Protection of Women from Domestic Violence Act (for short 'Act').
2. Respondent filed the complaint against the petitioners under Section 12 of the Act on the ground of her having been dispossessed and thrown out of shared household and entering the portion of the household in which she resides. It appears that the petitioners did not contest the proceedings and eventually their evidence was closed by the learned trial Court on 06.11.2015 and ::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 2 on the basis of the ex parte evidence led by the respondent the impugned order came to be passed.
3. As observed earlier, the order of the learned trial .
Magistrate was though assailed before the court of the learned Additional Sessions Judge by filing the appeal, however, the same has also been dismissed, constraining the petitioners to file the instant petition.
4. It is submitted by the learned counsel for the petitioners that the learned courts below have committed material illegality and irregularity in not taking into consideration the fact that petitioner No. 2 was under treatment in Military Hospital w.e.f.
09.11.2013 for schizophrenia and it was only on account of this disease that petitioner No. 2 was not in a position to contest the proceedings and, therefore, on this ground alone the orders passed by the learned courts below deserved to be set aside.
I have heard learned counsel for the petitioners and have gone through the material placed on record.
5. At the outset, it may be observed that apart from petitioner No. 2, his mother was also impleaded as party and figures as petitioner No. 1 in the instant petition. Noticeably, they were both represented by counsel Shri P.S. Tapwal, Advocate, and therefore, it does not lie in the mouth of petitioner No. 2 to say that the co-petitioner, who was none other than his mother had not contested the petition properly so as to watch and safeguard his interest.
::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 36. As regards the contention that he was suffering from schizophrenia, it would be necessary to first understand as to what is 'schizophrenia' and can this mental disorder be said to be a .
sufficient cause for a party not attending the court proceedings.
7. What is 'schizophrenia' has been elaborately considered by the Hon'ble Supreme Court in Ram Narain Gupta vs. Smt. Rameshwari Gupta AIR 1988 SC 2260, wherein it was held that schizophrenia is a difficult mental-affliction, which is said to be insidious in its onset and is characterized by the shallowness of emotions and is marked by a detachment from reality. In paranoid-states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious trap and in its worst manifestation, this illness produces a crude wrench from reality, however, not all schizophrenics are characterised by the same intensity of the disease and, therefore, the degree of mental disorder is required to be proved. It shall be apt to reproduce the relevant observations which read thus:-
"10. The context in which the ideas of unsoundness of 'mind' and 'mental-disorder' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the 'mental-disorder'. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All. mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could ::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 4 justify dissolution of a marriage few marriages would, indeed, survive in-law.
The answer to the apparently simple - and perhaps misleading - question as to "who is normal ?" runs. inevitably into philosophical .
thickets of the concept of mental normalcy and as involved therein, of the 'mind' itself. These concepts of 'mind', 'mental-phenomena' etc., are more known than understood and the theories of "mind" and "mentation" do not indicate any internal consistency, let alone validity, of their basic ideas. Theories of 'mind' with cognate ideas of 'perception' and 'consciousness' encompass a wide range of thoughts, more ontological than epistemological. Theories of mental phenomena are diverse and include the dualist concept - shared by Descartes and Sigmund Freud - of the separateness of the existence of the physical or the material world as distinguished from the non- material mental-world with its existence only spatially and not temporally. There is, again, the theory which stresses the neurological basis of the 'mental phenomenon' by asserting the functional correlation of the neuronal arrangements of the brain with mental phenomena. The 'behaviourist'-tradition, on the other hand, interprets all reference to mind as 'constructs' out of behaviour. "Functionalism", however, seems to assert that mind is the logical or functional state of physical systems. But all theories seem to recognise, in varying degrees, that the psychometric control over the mind operates at a level not yet fully taught to science. When a person is oppressed by intense and seemingly insoluble moral dilemmas, or when grief of loss of dear ones etch away all the bright colours of life, or where a broken-marriage brings with it the loss of emotional-security, what standards of normalcy of behaviour could be formulated and applied ? The arcane infallibility of science has not fully pervaded the study of the non-material dimensions of 'being'.
Speaking of the indisposition of science towards this study, a learned author says :::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 5
".............We have inherited cultural resistance to treating the conscious mind as a biological phenomenon like any other. This goes back to Descartes in the seventeenth century. Descartes divided the world into two kinds of substances : mental substances and physical substances.
.
Physical substances were the proper domain of science and mental substances were the property of religion. Something of an acceptance of this division exists even to the present day. So, for example, consciousness and subjectivity are often regarded as unsuitable topics for science. And this reluctance to deal with consciousness and subjectivity is part of a persistent objectifying tendency. People think science must be about objectively observable phenomena. On occasions when I have lectured to audiences of biologists and neurophysiologists, I have found many of them very reluctant to treat the mind in general and consciousness in particular as a proper domain of scientific investigation."
"............the use of the noun 'mind' is dangerously inhabited by the ghosts of old philosophical theories. It is very difficult to resist the idea that the mind is a kind of a thing, or at least an arena, or at least some kind of black box in which all of these mental processes occur."
(See : John Searle "Minds, Brains and Science"
1984 Reith Lectures, pp. 10 and 11) Lord Wilberforce, referring to the psychological basis of physical illness said that the area of ignorance of the body-mind relation seems to expand with that of knowledge. In McLoughlin v. O'Brian, (1983) 1 AC 410 at p. 418 the learned Lord said, though in a different context :
".............Whatever is unknown about the mind- body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable and illness as any that may be ::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 6 caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the Courts ..........."
But the illnesses that are called 'mental' are kept .
distinguished from those that ail the 'body' in a fundamental way. In "Philosophy and Medicine", Vol. 5 at page x the learned Editor refers to what distinguishes the two qualitatively :
"............Undoubtedly, mental illness is so divalued because it strikes at the very roots of our personhood. It visits us with uncontrollable fears, obsessions, compulsions, and anxieties..........."
".............This is captured in part by the language we use in describing the mentally ill. One is an hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic-depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox ........."
(Emphasis supplied)
11. 'Schizophrenia', it is true, is said to be difficult mental-affliction. It is said to be insidious in its onset and has hereditary predisposing factor. It is characterized by the shallowness of emotions and is marked by a detachment from reality. In paranoid-states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions.
"Schizophrenia" is described thus :
"A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The ::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 7 main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterized by prominent delusion; and .
catatonic, with marked motor disturbances (See catatonia).
12. Schizophrenia commonly - but not inevitably - runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness."
(See Concise Medical Dictionary at page 566 :
Oxford Medical Publications, 1980) But the point to note and emphasise is that the personality- disintegration that characterises this illness may be of varying degrees. Not all schzophrenics are characterised by the same intensity of the decease. F. C. Redlich and Daniel X. Freedman in "The Theory and Practice. of Psychiatry" (1966 Edn.) say :
".............Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living............" (P.
252) "Are the characteristic remissions and relapses expressions of endegenous processes, or are they responses to psychosocial variables, or both ? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission.
The term need not imply an independent endegenous process; it is just as likely that the spontaneous remission is a response to non- deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity......" (p. 465) (Emphasis supplied) ::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 8
8. Bearing in mind the aforesaid exposition of law, it can conveniently be held that in absence of the nature of mental disorder, the mere fact that the petitioner was suffering from .
schizophrenia would not be sufficient to conclude that he was wrongly proceeded ex parte or could not have joined the proceedings, after all, even the instant petition has been filed by the petitioner himself. The petitioner was required to place on record at least some material which could show that he was suffering from symptoms of psychotic illness and, thus, symptoms were not under r control with medication, which has been administered to him.
9. Adverting to the facts, it would be noticed that the petitioners had not assailed the findings rendered by the learned trial court regarding the entitlement of the respondent for compensation, allowance and protection order. Even then, learned Additional Sessions Judge has ventured to go into this question and observed as under:-
"15. As per the perusal of the file, the respondent/ appellant and her son namely Parvesh Kumar has not led any evidence on the record file and there is only statement of petitioner/aggrieved person on the record file and her statement shows that after two days of the marriage, the respondent started harassing the aggrieved person and no food was provided and she was subjected that she has illicit relation with Pankaj. She has specifically stated that on 2.8.2012, when she was cooking food, she was beaten and matter was told to the parents and her sister Mamta. It is admitted fact that the respondent is serving in the Indian army and her mother in law is getting pension and this ::: Downloaded on - 13/07/2018 23:01:41 :::HCHP 9 witness was meticulous cross-examined by the respondent. She also admitted in cross examination that her husband after returning back in the month of August and matter was also reported to the police and also filed the petition under Section 125 of the Cr.P.C., in which, Rs.5000/- was awarded .
by the court as maintenance."
10. It has specifically come in the evidence of respondent while appearing as PW1 that she was mentally harassed and emotionally black mailed by the petitioner No.2 and was compelled to work as a labourer, whereas on the other hand, he was working in Indian Army and getting a salary of about Rs.45,000/-, which was not even disputed by him. It has also not been disputed that he is now getting pension.
11. Once that be the position, obviously, no fault can be found with the orders passed by the learned Courts below.
Consequently, there is no merit in this petition and the same is accordingly dismissed in limine.
(Tarlok Singh Chauhan), Judge.
July 11, 2018 sanjeev ::: Downloaded on - 13/07/2018 23:01:41 :::HCHP