Full Judgment
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
10. h November, 2014 + FAO1872014 MEENU SETH Through: ..... Appellant Ms. Gauri Gupta & Ms. Tania Singh, Advocates versus BINU SETH & ORS. Through: ..... Respondents Mr. V.D. Pahuja, Advocate for respondents No.1 & 2 CORAM: HON'BLE MR. JUSTICE SUNIL GAUR JUDGMENT
(Oral) Appellant’s application for appointment of guardian of a person in property of her husband-Binu Seth is dismissed as not maintainable by the trial court vide order of 17th April, 2014. The finding returned in the impugned order is as under:‘In the instant case, considering the facts and circumstances of the matter and in view of the various examination of the allegedly mentally ill person namely Binu Seth by the court, where he could answer all the questions properly and behaved normal throughout his examination. In these circumstances, by no stretch of imagination, it can be said that allegedly mentally ill person Binu Seth is not in a capacity to manage himself and his affairs.’ At the hearing, it was contended by learned counsel for appellant that impugned order negates earlier order of 26th March, 2013 vide which respondent’s application under Order 7 Rule 11 of the CPC was FAO1872014 Page 1 dismissed while holding as under:‘In the instant matter, I am of the view that at the preliminary stage, the objections raised by respondents regarding the maintainability and cause of action to file a petition is a mixed question of facts & law and this court can not form any opinion or come to the conclusion regarding the mental status of allegedly mentally ill person Binu Seth. I am also of the view that same can be adjudicated only after referring the allegedly mentally ill person Binu Seth to be examined by the board of doctors constituted by IHBAS and after taking into consideration in the medical report/ opinion in this regard.”
During the course of hearing, attention of this Court was drawn to the various medical papers of Binu Seth, which are on trial court’s record to show that Binu Seth is having memory impairment and has alleged history of seizures and is depressed and is prescribed various medicines. Attention of this Court was also drawn to the statement of 30 th January, 2014 and 7th March, 2014 of Binu Seth recorded by the trial court to point out that in these statements only preliminary enquiries were made from Binu Seth. Appellant’s counsel asserted that Binu Seth is suffering from ‘Schizophrenia’, a mental illness, which requires treatment and this assertion cannot be outrightly rejected without any medical opinion. Thus, setting aside of the impugned order is sought and a prayer is made to get Binu Seth examined by a Medical Board. Learned counsel for respondents supports the impugned order and submits that there is no illegality or infirmity in it and that Binu Seth is suffering from mental retardation, which does not come within the purview of The Mental Health Act, 1987, under which the instant FAO1872014 Page 2 application has been filed. Upon hearing and on perusal of the impugned order and trial court’s record, I find that Sub-Section (2) of Section 50 of The Mental Health Act, 1987 gives discretion to the trial court to call for a report from any person regarding mental illness of a person in question. Impugned order does not take note of trial court’s earlier order of 26th March, 2013 vide which application under Order 7 Rule 11 of the CPC moved by mother and brother of Binu Seth was dismissed. Medical prescriptions on record have not been taken into consideration by the trial court in the impugned order. In the considered opinion of this Court, impugned order runs counter to the earlier order of 26th March, 2013 vide which application of respondents’ under Order 7 Rule 11 CPC stands dismissed while stressing upon medical examination of Binu Seth by a Medical Board. Consequentially, impugned order is quashed and petitioner’s application for appointment of a guardian is remanded back to the trial court to get the medical examination of Binu Seth done from a Medical Board duly constituted by Institute of Human Behavior and Allied Sciences and thereafter to decide appellant’s application in accordance with the law. With aforesaid directions, this appeal is disposed of. (SUNIL GAUR) JUDGE NOVEMBER10 2014 r FAO1872014 Page 3