Delhi District Court
Sh. Sunil Kumar Jain vs Smt. Anita Jain on 28 February, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Appeal No. 175/2017
1. Sh. Sunil Kumar Jain,
S/o Late Sh. J.P. Jain,
R/o K19, Second Floor (Back)
Kailash Colony,
New Delhi.
2. Shri Ashok Kumar Jain
S/o Late Sh. J.P. Jain,
R/o K16 A, Kailash Colony,
New Delhi
3. Smt. Mamta Jain
W/o Sh. Ashok Kumar Jain,
R/o K16 A, Kailash Colony,
New Delhi
4. Shri Anil Kumar Jain
S/o Late Sh. J.P. Jain,
R/o K6 A, Kailash Colony,
New Delhi
5. Smt. Sangeeta Jain
CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 1
W/o Late Sh. Anil Kumar Jain,
R/o K6 A, Kailash Colony,
New Delhi
6. Smt. Jai Mala Jain
W/o Late Sh. J.P. Jain,
R/o K16 A, Kailash Colony,
New Delhi . . . . . . . . . . Appellants
Versus
1. Smt. Anita Jain,
W/o Sh. Sunil Kumar Jain,
R/o S459, Greater Kailash Part II,
New Delhi110048
2. Ms. Prachi Jain (Minor),
D/o Sh. Sunil Jain,
Through Mother Anita Jain,
R/o S459, Greater Kailash Part II,
New Delhi110048
. . . . . . . Respondents
Reserved on: 09.02.2018 Announced on: 28.02.2018 CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 2 JUDGMENT
1. Vide this judgment I shall decide the present appeal filed under section 29 of The Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as DV Act. against the order dated 17.04.2017, learned MM in CC No. 61941/2016 filed against the appellants by respondents no. 1 and 2 under Section 12 of the Protection of Women from Domestic Violence Act 2005.
2. Brief submissions of the appellants are:
(a) The impugned order is totally illegal, without jurisdiction and against the provisions of Mental Health Act and DV Act.
(b) The impugned order of the Ld. Trial Court is based upon mere conjectures and surmises which are wrongly drawn by the Ld. Trial Court. The Ld. Trial Court in its order has totally misconstrued the purpose and the scope of the application filed by the appellants before the Ld. Trial court for examination of respondent no. 1 by a medical team of doctors on account of the fact that the respondent no. 1, admittedly as per her own case and as per the undisputed averments in the earlier petition under Section 12 of the Protection of Women against Domestic Violence Act (DV Act) was suffering from certain mental disorders and was a nervous wreck at the time the said earlier petition was filed in August 2014. It was therefore that the earlier petition under Section 12 of the DV Act on behalf of the respondent no. 1 had been filed by her father on her behalf alongwith the documents of the mental illness of respondent no. 1 and also an affidavit of the father of the respondent no. 1 who had filed the said petition stating that the respondent no. 1 was mentally unsound. The affidavit as regards the respondent CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 3 no. 1 being mentally unsound was filed by the father of the respondent no. 1 in the earlier petition in support of the main petition as well as the application for interim relief. The said petition on objections being raised by the appellants as regards its maintainability of the same by the father of respondent no. 1 on her behalf without the said Sh. SC Jain (father) being appointed as the Guardian of respondent no. 1 under the Mental Health Act, was thereafter during the hearing of the Appeal No. CA 26/2014 filed by the appellants under Section 29 of the DV Act before the Court of Sessions, Saket being an appeal filed by the appellants as regards the maintainability of the said earlier petiton was agreed to be withdrawn by the father of respondent no. 1, with liberty to file afresh as per law.
(c) The father of respondent no. 1 having withdrawn the earlier petition, the respondent no. 1 thereafter immediately filed a fresh petition being the present complaint case No. 619413/16 before the Metropolitan Magistrate under Section 12 of the DV Act in the name of respondent no. 1 and her minor daughter under the signatures of respondent no. 1 on the premise that the respondent no. 1 had since August 2014 when the earlier petition was filed, had recovered from mental illness and was competent to file the 2 nd petition under her own signatures in December 2014.
(d) On perusal of the averments made in the said complaint as well as the report of the Protection Officer dated 05.01.2014 the following facts emerge clearly:
(i) That the protection officer in its report dated 05.01.2014 in the heading itself has clearly observed that the:
"complainant has a mentally disturbed".
(ii) The respondent no. 1 herself in para 43 of the complaint has admitted that she has become a "nervous wreck" and in para 45 has stated to the CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 4 following effect:
"The petitioner no. 1 is also under treatment of Neurological Disorder treatment and a number of tests and check ups are required for which father of the petitioner no. 1 is spending money which is the duty of respondent no. 1. The copies of the tests reports alongwith bills are annexed as AnnexureE (Colly.)"
(iii) The respondent no. 1 in para 57 of the complaint admits that she had filed an earlier application under Domestic Violence Act in which a restraint order was passed in her favour and in para 58 has stated that:
"after few months of the treatment of the petitioner no. 1 she is now in a better shape and state of mind and can depose before the Hon'ble Court with a healthy disposing mind".
(iv) That from the averments which are made in the complaint and the documents in the nature of medical records specially the prescription dated 14.07.2014 for the treatment of the respondent no. 1, it is manifestly clear that the respondent no. 1 is having mentally and neurological disorders because of which she is not capable of making decisions in her own interest and is mentally ill as defined under the Mental Health Act 1987.
(v) That the fact that respondent no. 1 is mentally ill is further established, apart from the averments made in the complaint, from the following:
The earlier complaint being complaint no. 1765/3/14 was filed by the father of the respondent no. 1 on behalf of respondent no. 1 in which it was clearly stated that respondent no. 1 was a "nervous wreck" and was mentally unstable and therefore the complaint and the affidavit are enclosed alongwith the CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 5 present appeal.
The copy of the reply filed by the father of the respondent no. 1 on her behalf in criminal appeal no. 26 of 2014 filed by the appellant no. 1, wherein it was clearly admitted in para 6 that:
"the complainant No. 1 was under Neurological Disorder treatment."
And in para 3 of the reply on merits, it was admitted that respondent number 1 was rendered a nervous wreck on account of the alleged torture inflicted by the present appellants.
In the affidavit supporting said reply in CA No. 26 of 2014, it has once again being stated that the respondent no. 1 was not of stable mind and therefore the reply was being filed by her father Sh. Satish Chand Jain. The copy of the reply is Annexure A5 with this appeal.
That further in certain other proceeding pertaining to FIR No. 368 of 2014 P.S. Greater KailashI, Part New Delhi, u/s 354, 452/342/34 registered against the father, brother and the other relatives of respondent no. 1, at the instance of appellants no. 3 & 5 herein, namely the three anticipatory applications with following particulars:
i) Bail Application filed by Sushil Kumar Jain.
ii) Bail application filed by Sh. Sukhbir Kumar Jain and Ankur Jain.
Iii) Bail application filed by Sh. Satish Chand Jain and Atul Jain.
It has been once again admitted by the respondents therein that CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 6 respondent no. 1 had become a "nervous wreck" and had developed serious illness which had damaged her mental capabilities
(e) It is even the case of the appellants herein before the courts mentioned above as well as in their notice dated 07.07.2014 that the respondent no. 1 was even prior to her marriage with appellant no. 1 mentally ill and was of unsound mind and not capable of taking independent decisions in her own interest.
(f) The respondent no. 1 however while filing the fresh complaint has not filed any medical certificate which declares the respondent no. 1 to have undergone mental rehabilitation and to have been declared mentally fit and sound.
(g) In the absence of any authentic medical certification from a Government Hospital as regards the mental condition of the respondent no. 1, the complaint filed on behalf of respondent no. 1 is not maintainable and is barred under the provisions of the Mental Health Act 1987 which prescribes the manner in which the proceedings in case of mentally ill persons are to be conducted by their guardians and administrators appointed by the District Judge under provisions of Section 52 of the Mental Health Act 1987, after holding judicial inquisition as regards the mental capabilities of the mentally ill person.
(h) Appellant no. 1 has already vide DD No. 22B dated 20.11.2014, PS Greater Kailash II, New Delhi110048 filed a complaint under Section 25 of the Mental Health Act, for a medical Inquisition of the respondent no. 1, for her care. The police have however not taken any action over the same.
(i) The appellants herein on being issued the notice of the 2nd complaint CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 7 under DV Act by the Ld. Metropolitan Magistrate vide her orders dated 8 th of January 2015, thereafter filed an application under section 245 Cr.P.C before the Ld. Metropolitan Magistrate, inter alia alleging that the petition was not maintainable by respondent no. 1 as the respondent no. 1 admittedly being a case of mental unsoundness could not be a witness in her case and also could not file the case under her signatures without her mental condition being first certified to be sound by a Medical expiert.
(j) Ld. Metropolitan Magistrate thereafter on the objections of the appellants under Section 245 Cr.P.C. heard the appellants on 3 rd of March 2015 and by her order of same date rejected the said contention.
(k) The appellants against the order dated 03.03.2015 of the Ld. Metropolitan Magistrate dated 08th of January 2015 and 3rd of March 2015 filed an appeal number CA No. 57/2015 before the court of the Sessions Judge South East Saket New Delhi. The said appeal of the appellants was thereafter taken up for hearing and disposal of vide order dated 1st of December 2015 and dismissed with certain observations.
(l) The appellants had in the meanwhile during the pendency of their above stated appeal filed an application before the Ld. Trial Court for medical examination of the respondent no. 1 by a medical board, in light of the own averments and record of the case of the respondent no. 1 being the earlier DV Act petition.
(m) Appellants challanged the order of the ASJ in appeal No. 57/2015 dated 1st of December 2015, before the Hon'ble High Court of Delhi in Criminal MC No. 80/2016. The Hon'ble High Court issued notice on the said petition of the appellants to the respondents and ultimately disposed of the same by its order CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 8 dated 19.07.2016 by which it was directed that the application of the appellants filed before the trial court for getting respondent no. 1 examined by medical board would be disposed off by trial court in an expeditious manner.
(n) Thereafter the Ld. Trial Court on 7th of April 2017 in connection with the application of the appellants for getting the respondent no. 1 examined by medical board recorded the statement of the counsel for respondent no. 1 that he had no objection to the respondent no. 1 being medically examined as regards her mental fitness to maintain the petition in question.
(o) Thereafter the Ld. Trial court on 17th of April 2017 passed the impugned order dated 17th of April 2017 on the application of the appellants for medical examination of the respondent no. 1 and rejected the said application.
3. Being aggrieved by the said order, the appellants have preferred the present appeal.
4. Grounds of appeal
(i) The impugned order is totally illegal and is based upon mere conjectures and surmises & because the examination of respondent no. 1 by a medical board would have set aside a major controversy which was involved in the case and was admitted on record by respondent no. 1 in her earlier petition under the DV Act as well as the subsequent 2nd petition pending before the court.
(ii) Because the respondent no. 1 in her earlier petition had herself claimed to be a nervous wreck and the father of respondent no. 1 filed to affidavits stating that respondent no. 1 was mentally unsound. In light of the said pleadings which were admitted pleadings on record, no further evidence was required or CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 9 needed by the Ld. Trial court to form a prima facie opinion as regards the requirement of the mental health check of respondent no. 1.
(iii) Ld. Trial court in the impugned order has totally misconstrued the order passed by the ASJ in appeal number CA 57 of 2015. It is stated that if the protection officer is not competent to assess the mental capability of a person after having interacted with a person for a long period of time during recording of the proceedings of the DIR, the court also could not have by a short interaction with respondent no. 1 assessed the medical capability of respondent no. 1, which was only in the realm of a medical board or a psychiatrist.
(iv) Ld. Trial court has wrongly construed the observations of the appellate court that the appellants were entitled to raise the plea of mental illness afresh before the trial court if they could bring some evidence to establish the mental disorder of respondent no. 1. It is stated that there was ample evidence already on record as regards the mental illness of respondent no. 1 in the form of the documents filed by respondent no. 1 in her earlier domestic violence case, the affidavits of father of respondent no. 1, the medical record of respondent no. 1, the report of the protection officer which were all sufficient to establish the mental condition of respondent no. 1 and to enable the Hon'ble Trial Court to form a prima facie opinion about the medical condition of respondent no. 1 being not as that of a totally sound person and the respondent no. 1 being required to be medically examined.
(v) Ld. Trial court wrongly linked the disposal of the application for medical examination of the respondent no. 1 with the disposal of the application of respondent no. 1 for grant of interim maintenance. It is stated that the Ld. Trial court by its order dated 3rd of March 2015 had already granted interim maintenance to respondents and the appellant no. 1 was complying fully with the orders as CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 10 regards the payment of the said maintenance. There was therefore no occasion for the Ld. Trial court form an opinion that the medical examination of the respondent no. 1 was being wrongly insisted by the appellants as they intended to delay the proceedings and the disposal of the maintenance application.
(vi) Ld. Trial court committed an error in observing that the appellants were asking for medical examination of the respondent no. 1 only on the basis of the verbal allegations and without any material being available on record.
(vii) Observation of the Ld. Trial court that the respondent was of a perfectly sound mind and there was no requirement to send her for medical examination was totally incorrect and against the record as well as the own case set up by the respondents in their two domestic violence petitions.
(viii) Admission of the respondents that the respondent no. 1 at the time of filing of the earlier petition was suffering from depression but not mental unsoundness was sufficient for the Ld. Trial court to have directed the medical examination of the respondent no. 1.
(ix) Courts in number of cases have held that medical examination controversy once raised by one of the parties as regards the soundness of mind of the other party can be resolved only by medical examination and not in any other manner. The applicants in this regard rely upon the judgment of the Hon'ble Supreme Court of India reported as (1) Shardha v. Dharam Pal, (2) Raj Kumar v. Ram's Chandan & Ors. as well as the judgments of the (3) Madras High Court titled N Senthil Kumar v. Tamilselvi and also the judgment of Hon'ble Supreme Court of India in Lalit Kishore v. Meenu Sharma, AIR 2010 SC 1240.
(x) Provisions of Order 32 Rule 15 of the CPC also envisage and inquiry CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 11 by the Hon'ble Court as regards mental infirmity of any person during the pendency of a case and it was therefore a duty of the trial court to have directed the medical examination of the respondent no. 1.
(xi) That because the appellant no. 12 was willing to bear the expenses of the medical examination of the respondent no. 1 and in light of the consent of respondent no. 1 to be medically examined there was no reason for the learned Trial Court to dismiss the application in question.
(xii) Because the law as laid down by the Hon'ble High Court of Delhi in various judgments including the judgment reported as (I) 212 (2014) DLT 5 (DB) Nidhi Kaushik v. Union of India, (ii) 2014 (208) DLT 61 Ravi Dutta v. Kiran Dutta & Anr. And (iii) 2012 (190) DLT 647 Shambhu Prasad Singh v. Manjari has been totally ignored and intentionally sidelined.
(xiii) Because the court while rejecting the Domestic Incident Report observation that the complaint had a mentally disturbed condition has wrongly taken the view that the protection officer was not competent to have proceeded to make an enquiry as regards the mental codition of respondent no. 1. It is stated that the purpose of the enquiry by the protection officer under the Domestic Violence Act was to verify the claims and allegations of Domestic Violence made by the complainant and to place before the court a correct picture of relevant circumstances and the truth of the allegations made by the complainant. Therefore the mental condition of the complainant/respondent no. 1 was a very relevant and material factor to be observed in order to determine truth of her allegations against the appellant no. 1 and his family and the observation about the mental health of the respondent no. 1 could not have been treated to have been beyond the scope of the enquiry to be made the protection officer.
CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 12
(xiv) Because as per Section 9 of the Domestic Violence Act it was the duty of the protection officer to have made a proper enquiry and even have the aggrieved persons medically examined.
(xv) It was improer and illegal on part of the learned Metropolitan Magistrate to have totally ignored the Domestic Incident Report of the Protection Officer while holding the complaint to be maintainable.
(xvi) As per the law laid down by the Hon'ble Supreme Court of India in AIR 2003 SC 3450 Sharda v. Dharampal. The Hon'ble Supreme Court has clearly held that in cases of divorce proceedings involving mental illnesss of one of the spouses medical examination of a party can be ordered by the court at any stage in order to satisfy itself as to whether a party before it suffers from mental illness or not either for the purpose of appointment of guardia under the Indian Lunacy Act or the CPC as also for the purpose of determination of the competence of a party to appear as a witness.
(xvii) That because the Ld. Trial court while rejecting the objections of the appellants, could not have by herself declined the respondent no. 1 to be mentally fit, as even the trial court was not a mental psychiatric, if the protection officer was not and the Ld. Court to the said extent exceeded her jurisdiction totally.
(xviii) That because it was mandatory that the complaint if any be filed on behalf of the respondent no. 1 only by her duly appointed guardian under the Mental Health Act, 1987.
(xix) Because the respondent no. 1 being admittedly mentally unstable could not be expected to verify and depose towards the affirmation of the allegatios CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 13 made in the complaint.
(xx) The learned magistrate has passed the order without considering the report of the protection officer under Section 12 of the DV Act.
(xxi) Because the complaint as well as the summoning order are totally perverse, illegal and without jurisdiction as they are against the provision of Mental Health Act 1987 and the DV Act.
(xxii) Because the complaint is based upon complete hearsay and is self concocted by a third party on behalf of a mentally unstable person and as such is without any merits.
(xxiii) Because the allegations made in the petition under Section 12 are totally false and baseless and are against the earlier complaints filed by the respondents on 10.04.2014 and 05.07.2014, which were then withdrawn, and are belied by the same.
(xxiv) Because the reliefs claimed under Section 12 of the DV Act are beyond the scope of the Protection of Women against Domestic Violence Act and are not maintainable.
5. Detailed reply has been given by the respondents wherein they have denied the submissions made by the appellant and have prayed for dismissal of the present appeal.
6. Arguments heard. Record perused carefully.
7. The grounds raised in (xxi) to (xxiv) are not being adverted to as the CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 14 same are beyond the ambit of the present appeal.
8. The appellants have relied on the fact that earlier a petition under Section 12 of the Protection of Women against Domestic Violence Act (DV Act) was filed on behalf of the respondent no. 1 by her father on her behalf alongwith the documents of the mental illness of respondent no. 1 and also an affidavit of the father of the respondent no. 1 stating that the respondent no. 1 was mentally unsound. suffering from certain mental disorders and was a nervous wreck at the time the said earlier petition was filed in August 2014. It was later that the earlier petition under Section 12 of the DV Act was withdrawn by the father of respondent number 1 at the stage of appeal No. CA 26/2014 filed by the appellants under Section 29 of the DV Act before the Court of Sessions, Saket challenging the maintainability of the said earlier petiton. The appellants have submitted that the same amount to admission on part of respondent number 1 and father that she is mentally ill/of unsound mind mentally unstable.
9. To assess the said submission of the appellants, the previous complaint in the DV Act filed by the father of the respondent number 1 on her behalf and affidavit of her father has been.perused. In para2 of the affidavit, he had stated about respondent number 1 that she is under severe depression and at the time of filing the petition is not in a stable state of mind and therefore he had filed the said petition as a guardian for her as well as her daughter. However being in depression or not being in a stable state of mind does not amount to being of unsound mind or mentally ill and the submissions made by the appellant in this regard are found to be incorrect.
10. It is further noticed that the previous petition filed under DV Act by father of Respondent No. 1 on behalf of respondent number 1 was agreed to be withdrawn by the father of respondent no. 1, with liberty to file afresh as per law.
CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 15 The filing of the petition bearing CC No. 61941/2016 is as per law as there is no bar against respondent number 1 to file a petition under DV Act so long as the same is filed as per its provisions. Thus there is no merit in the contention of the appellant that respondent number 1 could not have filed a fresh petition under DV Act.
11. Respondent number 1 filed the fresh petition under her signatures on the premises that since August 2014 when the earlier petition was filed, she had recovered from mental illness and was competent to file the 2nd petition under her own signatures in December 2014. Appellant has contended that the same is not maintainable in absence of any authentic medical certification from a government hospital as regards mental condition of respondent number 1 and thus the complaint filed by her is not maintainable and is barred under the provisions of Mental Health Act. Appellant has submitted that the respondent number 1 is mentally unsound as admitted by her father in the previous petition filed under DV act by her father on her behalf. It is noticed that the father of respondent number 1 had stated that she has been rendered as a nervous wreck due to torture inflicted upon her by the respondents.
12. The whole statement of father of Respondent No. 1 has to be read. Father of Respondent No. 1 had stated that she was rendered a nervous wreck due to torture inflicted upon her by the respondents. In para25 of the petition, it was specifically stated that Petitioner No. 1 (respondent number 1 in the present appeal) was actually falling into the trap of the respondents as she was almost becoming a nervous wreck. Being rendered nervous wreck or being in depression or having unstable mind is not an irrecoverable state of mind and respondent number 1 could have come out of the same since she was staying away from those circumstances which had led her to go into depression or having unstable mind. There is nothing incredible about it and there is no reason to not to take that statement to be correct more so in view of interaction of the presiding officer of CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 16 Learned appellate court in CA no. 57/15 wherein he specifically observed that he personally talked to Respondent No. 1 and opined that she appears to be sound, rational and prudent mind.
13. Further as observed earlier that being in severe depression or having unstable mind or being a nervous wreck does not amount to a person being mentally ill or of unsound mind. Similarly as regards expression nervous wreck. It has been rightly contended by respondent no.1 that as per Oxford dictionary meaning, nervous wreck means a person suffering from stress or emotional exhaustion. As per Mac Millan dictionary, it means someone who is very upset and worried and by no stretch of imagination it can mean that it amounts to respondent number 1 having become a person of unsound mind as meant as per provisions of Mental Health Act.
14. Admittedly the respondent number 1 has undergone treatment to come out of the effect of depression as per own case of the appellants. Appellants have contended that respondent number 1 is taking the tablet Depakote for her treatment and the same is meant for treating manic episodes related to bipolar disorder (manic depression) however it is noticed that the said medicine is also taken for preventing migraine headaches. Thus the said submission of appellant is not sustainable more so since the medical perception relied upon by the appellant is of 14 July 2014 much before filing of CC No. 61941/2016 by respondent number
1.
15. Admittedly the police has not taken any action over the complaint of the appellant under section 25 of Mental Health Act for a medical inquisition of Respondent No. 1 and for her care.
16. When the appellants received the notice of the CC No. 61941/2016 CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 17 by respondent number 1, they had filed an application under section 245 Cr PC, alleging that the petition was not maintainable as she admittedly being case of mental unsoundness could not be a witness in her case and could not file the case under her signatures without her medical condition being first certified to be sound by a medical expert. The said application was dismissed by learned MM vide order dated 03.03.2015.
17. The said order was assailed by the appellant through appeal bearing CA No.57/2015. The said appeal was also dismissed vide order dated 1st December 2015.
18. The order of 01.12.2015 was challenged by the appellant before Hon'ble High Court of Delhi in Crl. M.C. No. 80/2016 and the same was disposed of vide order dated 19.07. 2016 by which it was directed that the application of the appellants filed before trial court for getting Respondent No. 1 examined by medical board would be disposed of by the trial court in an expeditious manner since in the meantime the appellant had filed an application before the learned MM for medical examination of Respondent No.1 by a medical board, in light of her own averments and record of case of Respondent No. 1 being unsound as per earlier DV Act petition.
19. On 07.04.2017, in connection with the said application filed by the appellants, learned counsel for respondent number 1 stated that he had no objection to the respondent number 1 being medically examined as regards her mental fitness to maintain the petition in question. The appellants have submitted that despite the said no objection, learned trial court dismissed the application moved by the appellants through the impugned order. However, the statement of learned counsel for Respondent No. 1, wherein he gave his no objection against the respondent number 1 being subjected to medical examination, is of no avail for CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 18 deciding the application of the appellant as the said application has to be decided on the merits of the averments made in the application and not on the basis of non opposition or noobjection given by the respondent number 1 or her counsel.
20. The applicants have relied upon the judgment of the Hon'ble Supreme Court of India reported as (1) Shardha v. Dharam Pal, (2) Raj Kumar v. Ram's Chandan & Ors. as well as the judgments of the (3) Madras High Court titled N Senthil Kumar v. Tamilselvi and also the judgment of Hon'ble Supreme Court of India in Lalit Kishore v. Meenu Sharma, AIR 2010 SC 1240.
21. Appellants have contended that medical examination controversy once raised by one of the parties as regards the soundness of mind of the other party can be resolved only by medical examination and not in any other manner and have relied on law laid down in AIR 2003 SC 3450 Sharda v. Dharampal, AIR 2010 SC 1240, Lalit Kishore v. Meenu Sharma, decided on 3 December 2010 while deciding C.R.P.(PD) number 3718 of 2009 and MP number 1 of 2009 N Senthil Kumar v. Tamilselvi. Appellants have contended that learned trial court has not applied its mind to the facts of the case and should have allowed the application in which the impugned order has been passed as in all these matters, the relevant court had dealt with application being made/moved where prayer had been made for getting the medical examination of the respondent and the same were dismissed by the trial courts but the orders ere reversed and the applications for medical examination were allowed.
22. All these judgments have been perused. However in all these matters it is noticed that one of the parties had moved an application for getting the medical examination conducted of oneself or of the opposite party and the same was declined by trial courts for the reason that the respective trial courts had opined that in absence of any such provision in the Family Courts Act or Hindu Marriage CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 19 Act, they could not have ordered for the same. When these orders were assailed, the Hon'ble appellate courts held that the trial courts/the courts are empowered to satisfy themselves as to whether a party before it suffers from mental illness or not either for the purpose of appointment of Guardian in terms of order 32 rule 15 of Code of Civil Procedure or section 41 of the Indian Lunacy Act. The concerned courts have made specific similar observation in respect of pending proceedings of divorce on the ground of unsoundness of mind of the spouse that matrimonial courts also have the power to satisfy themselves in respect of unsoundness of mind of the spouse through medical examination even in absence of any such provision under Hindu Marriage Act. However in the impugned order, learned trial court has nowhere expressed that it cannot exercise the power of medical examination of the respondent number 1 or that it has lack of jurisdiction or power to do so. Thus the law laid down in the aforesaid matters is of no avail or help to the case of the appellant.
23. The law laid down in AIR 2003 SC 3450 Sharda v. Dharampal rather helps the case of respondent number 1 since in the said matter, Hon'ble Supreme Court has specifically observed that:
"It is however axiomatic that a court shall not order a roving enquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the high courts in terms of section 115 of Code of Civil Procedure and/or Article 227 of Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order."
The appellants have miserably failed to bring anything on record CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 20 much less sufficient material to justify exercising/need of discretion.
24. Appellant has relied heavily on DIR submitted by the protection officer where it is noted that respondent number 1 has a mentally disturbed. The appellant has relied on the law laid down in 2014 (208) DLT 61 Ravi Dutta v. Kiran Dutta & Anr., where it has been held that nonconsideration of Domestic Incident Report (DIR) by the trial court while deciding application under section 12 vitiates the mandate of section 12 and therefore the order of trial court is not sustainable. It is noticed that copy of DIR supplied to Respondent No. 1 by the protection officer does not reflect the handwritten content where it was written on the top of 1st sheet of DIR that Anita Jain/complainant has a mentally disturbed. Thus credibility of DIR loses its significance as the same has been manipulated. Even otherwise the power and functions of Protection Officer are welldefined in section 9 of DV Act and it nowhere authorises the protection officer to give his opinion about mental condition/status of complainant. Taking of DIR into consideration does not mean accepting it for all intents and purposes and DIR needs to be taken into consideration so long as it is in conformity with the provisions of DV Act and not for the purposes for which the protection officer is not authorised to give his opinion or exercise his power under the provisions of the said Act. There is no infirmity in the impugned order where learned trial court has observed that the Protection Officer is not an expert psychiatrist to give any opinion on the mental capabilities of any person. Learned trial court has also rightly observed in the impugned order that the phrase "mentally disturbed" cannot be construed to mean mental illness so as to make the complainant incompetent to institute the complaint case. Learned trial court rightly dismissed the said objection taken by the appellant before it. The submission of the appellant that because the Ld. Trial court while rejecting the objections of the appellants, could not have by herself declined the respondent no. 1 to be mentally fit, as even the trial court was not a mental psychiatric, if the protection officer was not and the Ld. Court to the said CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 21 extent exceeded her jurisdiction totally is uncalled for and derogatory.
25. The appellant has also relied on the law laid down in 212 (2014) DLT 5 (DB) Nidhi Kaushik v. Union of India, the said judgement has been perused. It was held in the said case that pendency of a case under section 12 of the DV Act does not amount to pending of a criminal case. The said observation is of no consequence in the facts of the case. It has been further observed in the said case that under section 498 A, in matrimonial disputes, there is a tendency to implicate all family members of husband including married brothers and sisters who were living separately from husband. The said observation is also of no significance in the facts of the case to decide the present appeal.
26. Appellant has contended that learned trial court was duty bound to allow the application of appellant. However the guiding principle is the aforesaid observation of Hon'ble Supreme Court of India that "The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order."
27. The same mandate is there in the order dated 01.12. 2015 of the appellate court in CA number 57/2015 where the liberty to move the said application was granted to the appellants afresh before learned trial court if they are able to bring something on record in the form of evidence to establish an incurable neurological disorder, if any, suffered by respondent number 1 as alleged by them before the learned appellate court in CA no. 57/2015.
28. The present appeal has been heard at length. However the appellant has been unable to produce any such evidence before learned trial court and even before this court to support his contention that the learned trial court should have allowed the application and that the impugned order is bad in law.
CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 22
29. The appellant has expressed grievance over the observation of learned trial court in the impugned order where it has observed that "This court is amazed at the length to which a party can go to delay the trial of a matter." However the litigation between the parties and the round of appeals and further appeals and then moving of the application which was dismissed by the impugned order by learned trial court supports observation of learned trial court. I concur with the observation of learned trial court that the parties to litigation cannot be allowed to misuse the process of the court merely by stating that a person is mentally unsound and thus forcing her or him to be subjected for medical examination for getting her/his mental condition assessed.
30. Even under the provisions of Mental Health Act, "mentally ill person"
means a person who is in need of treatment by reason of any mental disorder other than mental retardation. Under section 22 of Mental Health Act, the magistrate is authorised to pass reception order for a mentally ill person.
However, section 22 specifically provides that: "(3) If the Magistrate considers that there are sufficient grounds for proceeding further, he shall personally examine the alleged mentally ill person unless, for reasons to be recorded in writing, he thinks that it is not necessary or expedient to do so.
(4) If the Magistrate is satisfied that a reception order may properly be made forthwith, he may make such order, and if the Magistrate is not so satisfied, he shall fix a date for further consideration of the application and may make such inquiries CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 23 concerning the alleged mentally ill person as he thinks fit.
(6) If the Magistrate fixes a date under subsection (4) for further consideration of the application, he may make such order as he thinks fit, for he proper care and custody of the alleged mentally ill person pending disposal of the application.
(7) On the date fixed under subsection (4), or on such further date as may be fixed by the Magistrate, he shall proceed to consider the application in camera, in the presence of--
(i) the applicant;
(ii) the alleged mentally ill person (unless the Magistrate in his discretion otherwise directs);
(iii) the person who may be appointed by the alleged mentally ill person to represent him; and
(iv) such other person as the Magistrate thinks fit, and if the Magistrate is satisfied that the alleged mentally ill person, in relation to whom the application is made, is so mentally ill that in the interests of the health and personal safety of that person or for the protection of others it is necessary to detain him in a psychiatric hospital or psychiatric nursing home for treatment, he may pass a reception order for that purpose and if he is not so satisfied, he shall dismiss the application and any such order may provide for the payment of the costs of the inquiry by the applicant personally or from out of the estate of the mentally ill person, as the Magistrate may deem appropriate."
CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 24 Thus even under section 22 of Mental Health Act, the first and the foremost requirement is that the Magistrate considers that there are sufficient grounds for proceeding further, he shall personally examine the alleged mentally ill person. Thus unless the magistrate is satisfied, no further enquiry in respect of mental health of a person can be proceeded with.
Similarly under section 24 and 52 of Mental Health Act, first and foremost requirement is satisfaction of the Magistrate that there are sufficient grounds for proceeding further and if he is not satisfied, no order is passed in respect of examination of mental health/mental illness of a person.
31. Learned trial court has rightly observed that the court cannot fall into the trap laid down by one party merely to delay the trial of the matter. There has to be some prima facie material on record to assist the court in arriving at a conclusion that either party before it is mentally incapable of taking care of its interest and thus an assessment of his/her mental condition is required. Mere verbal allegations made by one party qua another are not sufficient to subject another party to mental assessment by a board of doctors. Learned trial court has rightly concluded that even if no objection as given by counsel for complainant, respondent number 1 in the present appeal, learned trial court did not deem it appropriate to subject the complainant who seems to be of perfectly sound mind, to any medical examination for assessment of her mental soundness. Learned appellate court in CA number 57/2015 had also observed that during the course of addressing the court at the instance of appellant number 1 (appellant herein) learned appellate court had personally talked to Respondent No. 1 and opined that she appears to be sound, rational and prudent mind. Learned trial court has rightly dismissed the application of the appellant to be devoid of merits.
32. In view of these observations, I find no infirmity in the impugned CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 25 order and the same is accordingly upheld. Accordingly the present appeal is dismissed for being devoid of merits.
33. Copy of the judgment along with trial court record be sent back to learned trial court.
34. File be consigned to record room.
35. Parties are directed to appear before learned trial court on date fixed.
Announced in the open court on (Dr. Neera Bharihoke)
28.02.2018 Additional Sessions Judge06,
South East,Saket Courts,
New Delhi/28.02.2018
Digitally signed
by NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2018.02.28
20:06:07 +0530
CA No. 175/2017 Sunil Kumar Jain & Ors. v. Anita Jain & Anr. 26