Himachal Pradesh High Court
Parvesh Kumar vs Asha Kumari & Anr on 11 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 294 of 2018
Decided on: 11.07.2018
Parvesh Kumar ...petitioner
.
Versus
Asha Kumari & Anr. ...Respondents
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Pritam Singh Chandel, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
r to The petitioner has filed the present petition under Section 482 of the Criminal Procedure Code with the following prayers:-
"It is, therefore, most humbly and respectfully prayed that in the facts and circumstances explained here- in-above, present petition may kindly be allowed and the impugned judgment / order dated 27.01.2015, passed by Ld. Addl. Chief Judicial Magistrate, Court No. 1, Sarkaghat, District Mandi, H.P. in case No. 197-IV/2013, titled as Asha Kumari versus Parvesh Kumar and further stay the operation of recovery proceedings in demand no. 37/2018 issued by the Ld. Assistant Collector 1 st Grade-cum-Tehsildar (Recovery), Bilaspur, H.P. against the petitioner with a prayer to quash and set aside in the interest of law and justice."
2. It is not in dispute that the learned trial Court awarded a maintenance of Rs.5,000/- (Rupees five thousand) per month in favour of the respondent in a proceedings filed by her under ::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 2 Section 125 Cr.P.C. and it was only as a consequence thereof that the recovery/demand notice has been issued by the concerned Collector-cum-Tehsildar (Recovery).
.
3. It is vehemently argued by Shri Pritam Singh Chandel, Advocate, that the order passed by the learned Magistrate is absolutely illegal inasmuch as he has failed to take into consideration the fact that the petitioner was suffering from schizophrenia and was under treatment in Military Hospital w.e.f.
09.11.2013 and it was only on account thereof that he could not put in appearance before the court below and was proceeded ex parte.
I have heard learned counsel for the petitioner and have gone through the material placed on record.
4. In order to appreciate the controversy in question, it would be first necessary to 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.
5. 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 ::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 3 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 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 ::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 4 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 :
".............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."::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 5
"............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 r 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 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 ........."::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 6
(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 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 ::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 7 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)
6. What is 'schizophrenia' was thereafter considered in detail by the Hon'ble Supreme Court in Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778, and it was observed as under:-
"A RESEARCH ON THE DISEASE "Schizophernia is one of the most damaging of all mental disorders. It causes its victims to lose touch with reality. They often begin to hear, see or feel things that aren't really there (hallucinations) or become convinced of things that simply aren't true (delusions). In the paranoid form of this disorder, they develop delusions of persecution or personal grandeur. The first signs of Paranoid Schizophrenia usually surface between the ages of 15 and 34. There is no cure, but the disorder can be controlled with medications. Severe attacks may require hospitalization. The appellant has filed Annexures L,m,n,o,p and Q which are extracts about the aforesaid disease. The extracts are sum and substance of the disease ::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 8 and on a careful reading it would be well established that the evidence and documents on record clearly make out a case in favour of appellant and hence appellant was entitled to the relief prayed. In the memorandum and grounds of appeal, some salient features of the disease have also been specified.
.
Some of the relevant part of the extracts from various medical publications are reproduced herein below:
What is the disease and what one should know?
A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a false environment out of his subjective experiences.
It is customary to define 'delusion' more or less in the following way. A delusion is a false unshakeable belief, which is out of keeping with the patient's social and cultural background. ' German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. A delusion is the product of internal morbid processes and this is what makes it unamenable to external influences.
Apophanuous experiences which occur in acute schizophrenia and form the basis of delusions of persecution, but these delusions are also the result of auditory hallucinations, bodily hallucinations and experiences of passivity Delusions of persecution can take many forms. In delusions of reference, the patient feels that people are talking about him, slandering him or spying on him. It may be difficult to be certain if the patient has delusions of self-reference or if he has self-
reference hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but can occur in depressive illness and psychogenic reactions.
Causes The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse.::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 9
Risks without medication and therapy, most paranoid schizophrenics are unable to function in the real world. If they fall victim to severe hallucinations and delusions, they can be a danger to .
themselves and those around them.
What is schizophrenia?
schizophrenia is a chronic, disabling mental illness characterized by:
Psychotic symptoms Disordered thinking Emotional blunting How does schizophrenia develop?
Schizophrenia generally develops in late adolescence or early adulthood, most often:
In the late teens or early twenties in men In the twenties to early thirties in women What are the symptoms of schizophrenia? Although schizophrenia is chronic, symptoms may improve at times (periods of remission) and worsen at other times (acute episodes, or period of relapse).
Initial symptoms appear gradually and can include: Feeling tense Difficulty in concentrating Difficulty sleeping Social withdrawal What are psychotic symptoms?
Psychotic symptoms include:
Hallucinations: hearing voices or seeing things Delusions : bizarre beliefs with no basis in reality (for example, delusions of persecution or delusions of grandeur). These symptoms occur during acute or psychotic phases of the illness, but may improve during periods of remission. A patient may experience:
A single psychotic episode during the course of the illness Multiple psychotic episodes over a lifetime ::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 10 Continuous psychotic episodes During a psychotic episode, the patient is not completely out of touch with reality. Nevertheless, he/she has difficulty distinguishing distorted perceptions of reality (hallucinations, .
delusions) from reality, contributing to feelings of fear, anxiety, and confusion.
The disorder can prove dangerous for some - especially when symptoms of paranoia combine with the delusional symptoms of schizophrenia. In fact, doctors say Paranoid schizophrenics are notorious for discontinuing the treatments which help control their symptoms."
7. A Division Bench of the Hon'ble Karnataka High Court in Smt. Shilpa vs. Praveen S.R. AIR 2016 Karnataka 169, observed as under:-
"24. At this stage, we are reminded of a story of success portrayed by Sylvia Nasar in the Biography. 'A Beautiful Mind' (published by Simon & Schuster, as well as a Film of the same name) of John Forbes Nash Jr., an American Mathematician, born on June 13, 1928. He started showing symptoms of mental illness and spent several years at Psychiatric Hospital and was treated for paranoid schizophrenia. After 1970, he refused further medication and his condition improved. Thereafter he was never committed to Hospital again. He recovered gradually with the love and care of his divorced wife whom he remarried in 2001. He gradually returned to academic work by mid 1980s. He was awarded the 1994 Nobel Memorial Prize in Economic Sciences for the thesis, which earned him Ph.D. Degree in 1950. He was both a Mathematician and Economist. He made groundbreaking work in the area of real algebraic geometry. He published number of theorems to his credit and was awarded prestigious Abel Prize in 2015."
8. Bearing in mind the aforesaid exposition of law, it can conveniently be held that in absence of the nature of mental ::: Downloaded on - 13/07/2018 23:01:38 :::HCHP 11 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 control with medication, which has been administered to him.
9. Adverting to the merits of the case, it would be noticed that the specific case of the respondent was that the petitioner had been misbehaving and torturing the respondent by saying that your parents are beggar. Not only this, apart from demanding dowry, he had also beaten the respondent on 02.08.2012, constraining her to file the written complaint to the police post Jhandutta, wherein the petitioner admitted his guilt but despite the repeated compromise the petitioner did not mend his ways, as on 15.08.2012, the respondent was again beaten.
10. Notably, the petitioner had not only been duly served in this case but had initially appeared through his counsel and it was only lateron that he was proceeded ex parte vide order dated 12.11.2014.
11. It is not in dispute that the petitioner was serving in Indian Army, whereas the respondent was totally unemployed.
Therefore, in the given circumstances, the amount of Rs.5000/-
::: Downloaded on - 13/07/2018 23:01:39 :::HCHP 12(Rupees five thousand) awarded as maintenance can by no stretch of imagination be said to be on higher side.
12. In view of the aforesaid discussion, I find no merit in .
this petition and the same is accordingly dismissed in limine.
(Tarlok Singh Chauhan), Judge.
July 11, 2018
sanjeev
r to
::: Downloaded on - 13/07/2018 23:01:39 :::HCHP