Kerala High Court
Shaji vs State Of Kerala on 17 March, 2020
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941
Crl.MC.No.464 OF 2018
AGAINST THE ORDER/JUDGMENT IN CMP 405/2017 IN MC 92/2013 DATED 09-
01-2018 OF FAMILY COURT, KOLLAM
PETITIONERS/CO.PETITIONERS:
1 SHAJI
AGED 42, S/O.ANTONY,
ATTOOLINE HOUSE, PUTHIATHURA,
THIRUVANANTHAPURAM - 695526.
2 EDWARD SIRLING
AGED 61, S/O.SIRLING XAVIOUR LNNAS,
TC 32/311(1), MARIAN VILLA,
PADRE PIO TOWNSHIP,
KOCHUVELI, T.T.P. P.O.,
THIRUVANANTHAPURAM-695021.
(REPRESENTING 1ST PETITIONER
THROUGH NEXT FRIEND AND 2ND PETITIONER)
BY ADVS.
SRI.T.I.UNNIRAJA
SRI.S.G.SREEKANTH
SRI.R.S.VISRUTH
RESPONDENTS/PETITIONERS & STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 JOLY
AGED 27, D/O.ANTONY,
FISHERMAN COLONY,
MOOTHAKKARA, KOLLAM-691013.
3 JOSHNA S.
AGED 7, D/O.SHAJI,
-DO-
(MINOR REPRESENTED BY 2ND RESPONDENT)
Crl.MC.No.464 OF 2018
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4 JOSHWA S.
AGED 6, D/O.SHAJI,
-DO-
(MINOR REPRESENTED BY 2ND RESPONDENT)
R2-R4 BY ADV. SRI.SAJU J PANICKER
PP SMT.M.K PUSHPALATHA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.03.2020, THE COURT ON 17-03-2020 PASSED THE FOLLOWING:
Crl.MC.No.464 OF 2018
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ORDER
The 1st petitioner is the counter petitioner in C.M.P. No.405/2017 in M.C. No.92/2013 of Family Court, Kollam. The 2 nd petitioner claimed that the 1st petitioner is suffering from mental disability and he is represented by the 2 nd petitioner. 2nd respondent in the revision petition was the wife of the 1 st petitioner. 3rd and 4th respondents in the original petition are the children born in the matrimonial relationship of the 1st petitioner with the 2nd respondent. The parties to the proceedings will hereinafter be referred to as the petitioners and the respondents in accordance with their status in the Crl.M.C.
2. In M.C.No.92/2013, the 2nd respondent claimed maintenance on behalf of herself and her children. The 1 st petitioner and the 2nd respondent entered into a compromise evidenced by Annexure F, by which the 1 st petitioner undertook to pay maintenance at the rate of ₹1,500/- per month to each of the child. Other conditions were also incorporated in Annexure F. Accordingly, M.C. was decreed in terms of the settlement. Claiming that the 1st petitioner had refused to pay maintenance, C.M.P. No.405/2017 was filed in M.C. No.92/2013 by respondents 2 Crl.MC.No.464 OF 2018 4 to 4 for enforcement of the order of maintenance. By Annexure A order dated 09.01.2018, the court below directed the 1 st petitioner to undergo imprisonment for 6 months for his failure to pay the maintenance amount.
3. The records revealed that the 1st petitioner had earlier filed Crl.M.P. No.16/2018 for discharging him from the liability to pay maintenance. He claimed that he was suffering from 50% disability and consequent to the episodes of seizure which he was suffering from, he was unable to earn himself and thereby to maintain the wife and children. This application was dismissed by the court below.
4. The 1st petitioner relied on Annexure B disability certificate issued by the Medical Board dated 26.08.2017 to contend that he was suffering from mental illness. He also referred to Annexure E treatment certificate issued by a Doctor dated 20.09.2014.
5. The contention set up in the Crl.M.C. was that Annexures B and E disclose that the 1 st petitioner was suffering from recurrent episodes of seizure, consequent to epilepsy and it amounted to a mental disorder. According to him, due to the above mental disability he was unable to do any type of job. On Crl.MC.No.464 OF 2018 5 the above premise, he was unaware of the consequences of Annexure F compromise. Hence, he requested that Annexures A, C and F were liable to be quashed.
6. In the Crl.M.C., the 1st petitioner contended that seizure was a case of mental infirmity. He was incapable of understanding the consequences of his various acts. Hence, he could not enter into a valid compromise. Consequently, Annexure F compromise in M.C. No.92/2013 was invalid and arrived at without understanding the consequences of it. He claimed that consequently Annexure F compromise was invalid. Petitioners prayed to quash Annexures A, C and F.
7. In the light of the contention set up by the petitioners, the 1st petitioner was ordered to be released from prison by order of this Court dated 22.03.2018.
8. Heard both sides and examined the records.
9. Annexure B disability certificate issued by the District Medical Officer of Health, Thiruvananthapuram dated 26.08.2017 shows that it was a standing Disability Assessment Certificate issued in favour of the 1 st petitioner. He was seen by a Psychiatrist, a Surgeon and a Junior Consultant Psychiatrist of the District Hospital. He was found to be a case of epilepsy. The Crl.MC.No.464 OF 2018 6 permanent disability was quantified as 50%, which falls within the category of moderate disorder. Annexure E certificate shows that the Doctor has certified that the 1 st petitioner was suffering from chronic allergy and asthma. He was advised to avoid exertion to adverse environment which may aggravate his condition. He was directed to continue medication without interruption.
10. The precise contention of the learned counsel for the petitioners was that the 1st petitioner was suffering from epilepsy and it was a case of mental disorder. To support that contention, the learned counsel for the petitioners relied on an Article published by the Indian Epilepsy Association, wherein it was indicated that WHO estimates that epilepsy was one of the most common instance of serious brain disorders. Another article published in www.ncbi.nim.nih.gov by the National Institutes of Health's National Library of Medicine, indicates that epilepsy was associated with an increased prevalence of mental health disorder compared with the general population and it was also associated with a higher risk of suicide. Based on these materials, the learned counsel for the petitioners contended that epilepsy was a case of serious mental disorder.
11. The learned counsel for the petitioners invited my Crl.MC.No.464 OF 2018 7 attention to the Rights of Persons with Disabilities Act, 2016. Section 2(s) defines persons with disability as a person with long term physical, mental, intellectual and sensory impariment which, in interaction with barriers, hinders his full and effective participation in society equally with others. Section 14 of the Act provides for appointment of a guardian of person who fall within the category of persons with disability under the Act. Schedule to Section 2(zc) refers to physical disability, which according to the counsel, includes epilepsy also. Relying on the above, the counsel contended that the 1st petitioner was suffering from a mental disorder and hence the compromise entered into between the parties could not be enforced as against the 1 st petitioner.
12. The learned counsel for the petitioners relied on the decision in Raveendran V. Sobhana (2008 (1) KLT 488) where a Division Bench of this Court had considered the question whether the mental infirmity in the context of Order XXXII Rule 15 CPC includes mental disorder, insanity or mental illness. It was held by the Division Bench that the mental infirmity was not a mental disorder. It was not mental illness or unsoundness of mind or insanity. It only indicated the weakness of intellect and in the particular context of O.32 R.15, weakness of intellect to the extent Crl.MC.No.464 OF 2018 8 of making a person incapable of protecting his interests in the litigation. Thus a person who was not of unsound mind may, yet be a person who was mentally infirm, thus entitling him to the protection under O.32 R.15 CPC. Idiocy or unsoundness of mind indicates an abnormal state of mind, whereas mental infirmity only indicates weakness of mental strength. Inquisition as per the procedure under the Lunacy Act was not required while dealing with persons suffering from mental infirmity. A person who was not adjudged as one of unsound mind under the Lunacy Act was still entitled to the protection under O.32 R.15 CPC. The court proceeded to hold that in such cases, the court has a mandatory jurisdiction to enquire into the need for appointment of a next friend. It was not only the duty but also the obligation of the court to consider whether the person of unsound mind or of mental infirmity appearing before it was indeed capable of protecting his interests.
13. The crucial question that arises is whether the petitioner is suffering from epilepsy and if so, whether it amounts to a mental disorder vitiating Annexure F. There are materials to indicate that he was suffering from epilepsy. The Medial Board has quantified his disability as 50%.
Crl.MC.No.464 OF 2018 9
14. It is pertinent to note that the question that arises is whether in a proceeding under Section 125 Cr.P.C. pending before a Family Court, the provisions of Code of Civil Procedure could be invoked. Section 10(2) of the Family Court Act specifically provides that the procedural law applicable to the proceedings under Chapter IX of the Cr.P.C. was the Code of Criminal Procedure. Even the Hon'ble Supreme Court had held in Shabana Bano V. Imran Khan (AIR 2010 SC 305) that the proceeding under Section 125 Cr.P.C. was essentially in the nature of a civil proceeding though it was enforced through a criminal court. That was in relation to the nature of proceeding and not in relation to the procedural law applicable. However, Section 10(2) of the Family Courts Act specifically provides that it is the Code of Criminal Procedure that would apply. A Division Bench of this Court in Ramakrishnan V. Kali (1987 (2) KLT 938) had held that Code of Civil Procedure cannot as such apply in a proceeding under Section 125 Cr.P.C. However, it was indicated that the principles in other Part of Cr.P.C. can be adopted by a court exercising jurisdiction under Chapter IX of Cr.P.C. and evolve procedure accordingly. Hence, the decision rendered by the learned counsel for the petitioners in Raveendran's case (supra) may not as such apply. Crl.MC.No.464 OF 2018 10
15. The definition of Section 2(s) read with 2(zc) of Persons with Disabilities Act indicates that a person with epilepsy may fall within the definition of persons covered by that Act. However, that will only enable such person to get the rights and entitlements under Chapter II of the Act and not the relief claimed now.
16. However, the crucial question that arises in this case is whether the 1st petitioner was suffering from mental ailment so as to vitiate Annexure F compromise entered into by him. It is pertinent to note that the available records reveal that the respondents appeared, contested the proceeding and thereafter voluntarily entered into the settlement. At no point of time even thereafter he had a contention that it was an unenforceable agreement. Even when he appeared in C.M.P. No.405/2017, he had no such a contention. Only belatedly he set up a contention. It is settled that it is not medical insanity, that is crucial in adjudicating the issues but is mental insanity. At present, apart from the medical evidence there is nothing on record to show that there was any vitiating circumstances which rendered the execution of Annexure F invalid. If the petitioner is really aggrieved by Annexure F, the remedy lies else where and not in this Crl.M.C. Crl.MC.No.464 OF 2018 11
17. Hence, I do not find any justification in granting the relief sought in a proceeding under Section 482 Cr.P.C. This will not preclude the petitioner from independently challenging Annexure F in accordance with law.
Accordingly, Crl.M.C. fails and is dismissed.
Sd/-
SUNIL THOMAS, JUDGE Pn Crl.MC.No.464 OF 2018 12 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A- THE TRUE COPY OF THE ORDER IN
C.M.P.405/2017 DTD.09/01/2018.
ANNEXURE B- A TRUE PHOTOCOPY OF THE DISABILITY
CERTIFICATE ISSUED BY THE MEDICAL BOARD
DTD.26/08/2017.
ANNEXURE C- A TRUE COPY OF THE ORDER IN
C.M.P.16/2018 DATED 19/01/2018.
ANNEXURE D- A TRUE COPY OF THE RATION CARD
DTD.15/03/2017.
ANNEXURE E- THE TRUE COPY OF THE TREATMENT
CERTIFICATE ISSUED BY DR.C.SUDHEENDRA
GHOSH DTD.20/09/2014.
ANNEXURE F- THE TRUE COPY OF THE COMPROMISE PETITION
VIDE NO.C.M.P.544/2015 DTD.22/12/2015.
ANNEXURE G- THE TRUE COPY OF THE ORDER IN
M.C.92/2013 DTD.22/12/2015.
ANNEXURE H- THE TRUE COPY OF THE C.M.P.405/2017
DTD.12/06/2016.