Judgment:
Cr.R.No.845/2010 13.3.2013 Shri R.L.Ariha, counsel for the applicant.
Shri Anoop Soni, counsel for the respondent/State.
As prayed, heard learned counsel for the parties finally.
The applicant has challenged the order dated 19.4.2010 passed by the learned Sessions Judge, Chhatarpur in Criminal Revision No.194/2009 whereby the order dated 12.10.2009 passed by the JMFC, Chhatarpur in Criminal Case No.12/2009 was set aside in which the respondent no.1 was to be examined to give her evidence.
Facts of the case relating to the present revision in short are that, the respondent no.1 has moved an application for maintenance for herself and her children through her father Habib Khan and she has shown herself to be a lunatic.
An application was moved by the applicant before the trial Court that the respondent no.1 may be examined on oath but the trial Court permitted the application whereas the revisionary Court set aside the order passed by the trial Court.
After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the respondent no.1 is able to give her statement or not.
A medical certificate was submitted before the trial Court in that respect but no doctor was examined before the Court to show that what was the limit of incompetency of the respondent no.1, whether she is a lunatic for entire day or she is a lunatic for lucid intervals.
If a person does not appear before the Court to give her statement then an adveRs.interference is to be drawn in general but, if that party is suffering from any mental illness then an exemption may be granted and therefore, adveRs.inference can be drawn for non-examination of that person.
Under such circumstances, it would be proper that the doctor who gave the certificate of disability may be examined before the trial Court to show that the respondent no.1 is unable to give her statement.
Under such circumstances, the impugned order dated 19.4.2010 as well as the order passed by the JMFC, Chhatarpur are hereby set aside with the direction that the learned JMFC, Chhatarpur shall hold a fact finding summary enquiry that whether the respondent no.1 is unable to give her statements before the Court or not and thereafter, the application filed by the applicant shall be decided.
With the aforesaid directions the present revision is hereby disposed of.
Copy of the order be sent to the trial Court for information and compliance.
(N.K.Gupta) Judge bina