Moidutty v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** # **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** # **WP(C).No. 29780 of 2018** **PETITIONER/S:** **MOIDUTTY AGED 68 YEARS S/O.KAZHUNGIL ALAVI, RESIDING AT KAZHUNGIL HOUSE, CHANGUVETTY, KOTTAKKAL POST, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.P.SUDHEER SRI.J.RAMKUMAR** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEPARTMENT OF HEALTH AND FAMILY WELFARE,**| ||**SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**RAZIYA**| ||**W/O. KKAZHUGIL MOIDUTTY, ORAVUTHODI HOUSE,**| ||**VILAYOOR AMSOM DESOM, VILAYUR WEST P.O.,**| ||**PALAKKAD DISTRICT, PIN - 679306**| |**3**|**KAZHUNGIL ABDUL GAFOOR**| ||**S/O. MOIDUTTY, 403, A BLOCK,**| ||**DS MAX SILVER NEST APARTMENT,**| ||**BANGALORE - 560097**| |**4**|**KALLADI FATHIMA**| ||**W/O. KAZHUNGIL MOIDUTTY, VIMANAPURA HAL,**| ||**BANGALORE, PIN - 560017**| |**5**|**AFSAR BABOO**| ||**S/O. MOIDUTTY, VIMANAPURA, HAL,**| ||**BANGALORE - 560017**| |**6**|**BASHEER**| ||**S/O. KALLADI KUNHIPOCKER, PARAPPOOR POST,**| ||**TIRURANGADI TALUK,**| ||**MALAPPURAM DISTRICT, PIN - 676503**| 2 **WP(C).No. 29780 of 2018** **7 KAZHUNGIL ALAVI S/O. MAMMI, KLARI P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676501 BY ADVS. SRI N MANOJ KUMAR SPL GP ANOOP.V.NAIR SRI.R.SUDHIR SRI.M.S.SANDEEP SUDHAKARAN SRI.V.K.PRASAD SRI.V.K.SREEJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **WP(C).No. 29780 of 2018** ## **JUDGMENT** The petitioner, a retired Drawing Teacher aged 68 years, is before this Court seeking a writ of prohibition commanding the District Court, Manjeri not to proceed with Exhibit P2 proceedings, being a suit numbered as O.P.(MHA) No.184 of 2015, filed under the Mental Health Act, 1987(for brevity 'the MH Act). Though the said Act is repealed, there is a saving clause in the new Act, Mental Healthcare Act, 2017, permitting continuance of the proceedings initiated as per the earlier Act. 2. The allegation of the petitioner is that respondent No.2, who has initiated Exhibit P2, is attempting to grab the properties of the petitioner, being the 2[nd] wife of the petitioner; in which wedlock the 3[rd] respondent was born. The petitioner asserts that the only crime he committed is of entering into a second marriage. The first marriage was with the 4[th] respondent, in 4 **WP(C).No. 29780 of 2018** which marriage the 5[th] respondent was born. 3. Before we proceed with the matter, first we have to look at the scope of a writ of prohibition as has been restated in _**(2003) 8 SCC 134**_ ## _**[Thirumala Thirupati Devasthanams and others v. Thallappaka Ananthacharyulu and Others ]**_ Paragraph 14 of the said judgment is extracted hereunder for more clarity on the scope of writ of prohibition: “14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior Court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst 5 **WP(C).No. 29780 of 2018** issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a cloak of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate Court and could also lead to chaotic consequences. It would undermine the confidence of the Subordinate Court. It was not even argued that there was total lack of jurisdiction in the civil Court. It could not be denied that the civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil Court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the Court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the jurisdiction of the Civil Court to decide these questions. In the impugned 6 **WP(C).No. 29780 of 2018** Judgment no reason, much less a cogent or strong reason, has been given as to why the civil Court could not be allowed to decide these questions. The impugned judgment does not state that the Civil Court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of rules of natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of fundamental rights. The impugned judgment does not indicate as to why the High Court did not consider it expedient to allow the Civil Court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the Civil Court be not allowed to decide whether the suit was barred by virtue of Section 14 of the said Act or on principles of res judicata/estoppel. To be remembered that no fundamental right is being violated when a Court of competent jurisdiction is deciding, rightly or wrongly, matters before it”. With the above declaration of law in mind, this Court has to look at the facts as coming out in the writ petition. 7 **WP(C).No. 29780 of 2018** 4. The harassment complained of by the petitioner has a brief history, allegedly due to the apprehension harboured by the respondents 2 and 3 that they would be left with little to inherit, if the petitioner is allowed to carry on his affairs by himself. The 3[rd] respondent, the son of the petitioner, had once initiated M.C.No.1 of 2015 before the Revenue Divisional Officer [for brevity “RDO”], Tirur invoking the provisions contained in the Maintenance and Welfare of Senior Citizens Act, 2007. The prayers sought for in the application were as follows: “In view of the facts mentioned above it is prayed that this Hon'ble Authority may be pleased to take cognizance of this complaint, summon the respondents and the Senior Citizen, get the Senior Citizen examined by a Medical Board and based on the conclusions of the Medical Board appropriate orders may be passed protecting the life and property of the Senior Citizen in the interest of justice. It is also prayed that appropriate orders may be passed restraining the 8 **WP(C).No. 29780 of 2018** respondents from taking away the Senior Citizen out of Kerala State and to restrain the respondents from misappropriating the income or other monies of the Senior Citizen. It is also prayed that the Tahsildar of Tirur may be called upon to furnish the details of the entire properties owned by the Senior Citizen and details of his monthly pension also and orders may be passed protecting the said properties from being wrongfully alienated in the interest of justice.” 5. The petitioner challenged the proceedings in a writ petition, in which Exhibit P1 order was passed. The Maintenance Tribunal was found to be not competent to decide upon the mental status of a person even if he is a senior citizen. Here, it has to be noticed that the specific prayer in the petition before the RDO was to direct the Tahsildar Tirur to furnish the details of the properties owned by the petitioner and details of his monthly pension and consequential orders were sought to protect the said properties from being alienated. Hence, the attempt was specifically to 9 **WP(C).No. 29780 of 2018** ensure that the petitioner does not alienate his properties. The protection order was sought only on the basis of the apprehension that the petitioner, in his life time, would alienate the properties which would lead to the second wife and the son being prevented from inheriting their share of his properties. 6. By Ext.P1, dated 22.01.2016 the learned Single Judge set aside the proceedings based on the application filed before the Maintenance Tribunal. Simultaneous to the application before the Maintenance Tribunal, the 2[nd] respondent had approached the District Court, Manjeri with an original petition under the MH Act, which was numbered as O.P(MHA) No.184 of 2015, a copy of which is produced at Ext.P2. The 3[rd] respondent, the son of the 2[nd] respondent, had also issued a communication to the Headmaster of Kottakkal Rajah's High School, informing him about the application filed under the MH Act and also 10 **WP(C).No. 29780 of 2018** cautioning the Headmaster not to have any financial dealings with the petitioner. 7. In the original petition, the District Court had directed examination of the petitioner at the Government Medical College, Kozhikode. The Government Medical College had constituted a Board, from the Department of Psychiatry, who carried out an examination; having subjected the petitioner to an inpatient admission. The report of the Medical Board is produced at Ext.P4. The report evidences that the petitioner was found to be normal, but had expressive aphasia (meaning inability to speak properly) with moderate cognitive impairment. The petitioner was also found to have no psychotic features. The report is dated 07.06.2016. The 2[nd] respondent, dissatisfied with the report after more than five months, filed Ext.P6 application dated 18.11.2017 in the OP(MHA)No.184 of 2015 seeking to set aside the report of medical examination and also a 11 ## **WP(C).No. 29780 of 2018** direction for reference to the National Institute of Mental Health and Neurosciences (NIMHANS), Bangalore. The said application was considered by the District Judge, who issued Ext.P7 order, which is the immediate cause of the writ petition filed before this Court. 8. The petitioner was directed to appear before the NIMHANS for neuro-psychological evaluation and the expenses were directed to be met by the 2[nd] respondent, who was the petitioner in the OP(MHA)No.184 of 2015. The petitioner submitted that he is perfectly normal and is able to carry on his own affairs and repeated applications to declare him mentally ill is motivated by the apprehension that the respondents 2 and 3 may not inherit his properties. The learned counsel for the petitioner submits that the only crime committed by the petitioner of entering into two marriages and he is as of now separated from both of them. The petitioner is 12 **WP(C).No. 29780 of 2018** leaving on his own and even after retirement, is attending the school, in which he was employed earlier. He is still giving drawing classes to the students on is own accord without remuneration and there is no cause for repeated mental examination in one centre or other. The petitioner also relies on Ext.P9 certificate issued by the Principal of the Government Rajah's Higher Secondary School, which indicates that the petitioner is actively involved; though voluntarily, in equipping the students with drawing, painting and other co- curricular skills even after his retirement. Ext.P10 is a write up, which appeared in the Mathrubhoomi daily, publicizing the drawing skills of the petitioner and the unselfish manner, in which he imparts lessons in drawing to students even after his retirement. **==> picture [388 x 12] intentionally omitted <==** circumstances, this Court was inclined to call for the petitioner and interact with him personally as 13 ## **WP(C).No. 29780 of 2018** also subject him to an examination by a Psychiatrist. This Court was so persuaded, especially looking at the repeated proceedings initiated by the respondents 2 and 3 intended at declaring the petitioner as mentally disabled. This Court also noticed that the learned District Judge also did not care to carry out an inquisition by summoning the petitioner and personally assessing him; which ought to have been done especially in the context of the report of the Medical Board. This Court was also persuaded by the various averments in Ext.P2 suit, which too the lower court failed to scan before attempting a mental status examination by a higher centre. The averments in the counter affidavit dated 10.10.2018 filed by the 2[nd] respondent similar to the plaint, again projects the desire to inherit. This Court was _prima facie_ convinced that the motivation of the 2[nd] respondent was more out of the fear and 14 **WP(C).No. 29780 of 2018** apprehension that the petitioner may deal with his properties and leave nothing for the respondents 2 and 3 to inherit. This Court hence directed the learned counsel for the petitioner to ensure presence of the petitioner on 31.10.2018. This Court also directed the learned Special Government Pleader, appearing for the 1[st] respondent, the State of Kerala, to make available the services of a Psychiatrist in the Chambers of this Court. 10. This Court after interaction with the petitioner and the Psychiatrist, the latter of whom had effective interaction with the subject for more than an hour, passed the following order on 31.10.2018. As directed, Dr.Vidhukumar.K., Associate Professor & Head of Department of Psychiatry, Government Medical College, Ernakulam is present in Chambers and so is the petitioner. The Psychiatrist has had effective interaction with the petitioner. On examination, it is submitted that the petitioner suffers from dementia and also has serious impairment of speech; but, 15 **WP(C).No. 29780 of 2018** however, the general impression is that he is able to look after himself. He is also conscious of the family disputes and is aware of the properties held by him. The petitioner also is definite about how he should deal with the properties. I have also interacted with the petitioner in the presence of the learned Counsel for all parties as also the learned Special Government Pleader. The doctor was requested to submit a report to the learned Special Government Pleader, who shall file it by next week. 11. Before referring to the report of the Psychiatrist before this Court, a more detailed examination of the proceedings initiated by the 2[nd] respondent is required. By Ext.P2 the 2[nd] respondent has admitted that the petitioner is a retired drawing teacher and that the 4[th] respondent is his first wife and the 2[nd] respondent is his second wife. The petitioner has two children in the two wives respectively the 3[rd] respondent and the 5[th] respondent. It is stated in the OP(MHA)No.184 of 2015 that the petitioner is 16 **WP(C).No. 29780 of 2018** residing with the respondents 4 and 5 who along with respondents 2 and 3 are the only legal heirs entitled to succeed to the estate of the petitioner after his death. The petitioner however asserts that he is residing alone. The averments then go on to notice the petitioner's ownership of various properties scheduled in the petition. The documents with respect to the said landed properties are said to be in the custody of the first wife and their son. The 2[nd] respondent has also stated that she is enquiring about the other properties belonging to the petitioner and the details would be supplied in course of time. There is then a bland averment that the petitioner is not mentally fit and healthy, to look after his affairs and properties. It is also stated that he is insane for the past 10-15 years and that even while working as a drawing teacher he was having “sleeplessness, disobedience, poor personal care, keeping aloof, poor socialisation etc”. The 17 ## **WP(C).No. 29780 of 2018** petitioner is also said to have been suffering from memory loss, easy irritability, hallucination, suspicion towards all etc. He is said to have been taken to different hospitals for treatment and then again the contentions revert back to his properties and accuse the respondents 4 and 5 in having no interest in the welfare of the person or property of the petitioner. Statements are made as to the apprehension with respect to the respondents 4 and 5 trying to alienate the properties and appropriate the money for themselves. The respondents 6 and 7 who are also arrayed in the OP(MHA)No.184 of 2015 are said to be close relatives of the first wife. The 2[nd] respondent then expresses her wish and interest in looking after the petitioner and seeks for an enquiry into the mental condition of the petitioner as also a declaration that the petitioner is mentally ill and for appointment of the 2[nd] respondent as the guardian of the 18 **WP(C).No. 29780 of 2018** petitioner. There is also a prayer to direct the petitioner to take possession of the properties as a Receiver of the estate. 12. This Court finds that the averments in OP(MHA)No.184 of 2015 itself specifically seek the prayer of declaration only to ensure that the properties owned by the petitioner are not alienated. In effect, the averments and the prayers sought are to protect the properties from the real owner, who is the petitioner himself; on the premise that he is mentally sick. It is very pertinent that according to the 2[nd] respondent, the petitioner is now with the respondents 4 and 5. The allegation is also that the respondents 4 and 5 were aiding the petitioner to alienate the properties and the petitioner is doing so without actual cognition of the consequence of his actions. In this context, it is to be noticed that the petitioner is said to have started showing symptoms of mental illness with a head 19 ## **WP(C).No. 29780 of 2018** injury suffered in the year 1985. It is also seen from the Medical Report that he had alcohol dependence before 1985. At the time he suffered the head injury, he was working abroad in Abudabi. Obviously after that he has returned and had been working in a Government school as a drawing teacher. From the affidavit in the writ petition he is stated to be 68 years as on 2018. He should have been 35 at the time when he suffered a head injury. Obviously after that till 56 years of age, the age of superannuation, he had been working as drawing teacher in a school and he had also retired from there. Though there is no statement as to the period of cohabitation he had with the 2[nd] respondent, the learned counsel for that respondent, in arguments stated that the petitioner had deserted her 20 years back. There is also an averment in the writ petition that the 2[nd] respondent is residing with the 3[rd] respondent at Bangalore, which has been denied by the 2[nd] 20 ## **WP(C).No. 29780 of 2018** respondent in her counter affidavit. Even otherwise there is absolutely no averment as to the 2[nd] respondent having co-habited with the petitioner for long. 13. Ext.P3 is a communication issued by the 3[rd] respondent to the Headmaster of the Government School in which the petitioner was working and later retired; obviously, 12 years back. The very fact that the 3[rd] respondent had written to the Headmaster of the school, in the year 2018 cautioning them from having any transaction with the petitioner, indicates that the petitioner has been associated with the school even after his retirement. This was also in the knowledge of the respondents 2 & 3. Ext.P3 communication and the caution levelled against the school and the staff members lend credence to the certificate of the Headmaster produced at Ext.P9 and the newspaper report at Ext.P10. 21 **WP(C).No. 29780 of 2018** 14. In this context, Ext.P4 report has also to be looked at. The petitioner was admitted as an inpatient on 23.05.2016 and was discharged on 01.06.2016 after regular examination for 8 days. The history of the accident, his earlier alcoholic dependence as also the psychiatric treatment till 2018 is referred therein. A sister of the petitioner is also said to be suffering from mental illness. The Board has noticed that the petitioner had married twice and is currently living alone and able to look after himself. The evaluation is as follows: Serial mental status examination was done independently and separately by the board members. On examination, he is conscious, oriented to time, place and person; no impairment of immediate, recent and remote memory; delay in comprehension present; expressive aphasia with impairment of repetition was present, no impairment of naming; there was impairment in control of emotions, there was significant impairment in reading and writing and mild impairment in calculation. He had no Psychotic features. 22 **WP(C).No. 29780 of 2018** Physical examination showed that major systems were normal. Impression: Expressive aphasia with moderate cognitive impairment. More specific diagnosis can be made after a detailed neuropsychological evaluation at a higher centre. 15. Exts. P5 and P6 applications by the 2[nd] respondent raised suspicion against the report filed without any reasonable cause. The Additional District Judge-III Manjeri has passed Ext.P7 order on the application filed in the MHOP. The contentions of both sides as also the medical report was specifically noticed by the learned Judge. The learned Judge then goes on to record that there was no psychotic features noticed in the medical report. However, the learned Judge thought it fit to rely on the observations made by the Board about certain impairment present in the alleged mentally ill person and the family history of mental illness of one of his sisters, without even having a personal interaction with the 23 ## **WP(C).No. 29780 of 2018** petitioner. The fact that the petitioner had undergone psychiatric treatment till 2013 was also referred to and the petitioner was referred for a neuro-psychological evaluation at a higher centre as has been stated by the Medical Board; which according to this Court is without reasonable cause and proper application of mind. 16. In the context of the medical report, this Court is of the opinion that the learned District Judge ought to have first summoned the petitioner and interacted with him before a direction to sent him to a higher centrer was made. In fact, the reservation made as to a detailed neuro- psychological evaluation at a higher centre in Ext.P4 is one of abundant caution and the extracted mental status examination would indicate the petitioner is able to look after his affairs. There should be a cause shown for such detailed evaluation of the petitioner at a higher centre of a subsequent occurrence throwing suspicion on the 24 **WP(C).No. 29780 of 2018** continued mental health of the petitioner; which in any event was certified by the Medical Board which categorically found him to be capable of looking after himself. It cannot be on the mere _ipsi dixit_ of the 2[nd] respondent, who is the applicant in the suit. 17. The learned District Judge having not thought it fit to interact with the person, this Court had carried out such interaction on 31.10.2018 after the petitioner was examined by a Psychiatrist, the Associate Professor and Head of the Department of Psychiatry, Medical College, Ernakulam. The findings on examination are extracted hereunder which is available in the report dated 07.11.2018, which has been produced before this Court by the learned Special Government Pleader along with a memo. On perusal of records it is found the following:- It is found that Mr.Moidutty has suffered a head injury in 1985. Since then he had been on treatments including surgery by temporo- 25 **WP(C).No. 29780 of 2018** frontal craniotomy, prophylaxis against seizures, treatment with antipsychotics and antidepressants for the behavioural symptoms developing subsequent to the head injury. He had also features suggestive of speech disorder (expressive aphasia) and mild anomia (naming difficulty). There are reports of memory impairment also. The serial evaluation of records also show improvement in his cognitive functions and currently Moidutty is having stable level of functionality. It is also reported that Mr.Moidutty is able to take care of himself. Examination findings: Mr.Moidutty expressed his current situation and circumstances, although with difficulty. He was co-operative. He described his current involvement in giving drawing lessons for children. There were no psychotic features or depressive features. Examination revealed impairments in orientation to time, impaired concentration, some impairment of memory, impaired comprehension, repetition and constructional ability. A Mini Mental State Examination (MMSE) Score of 15 was obtained summarising the above functions which indicate a moderate cognitive impairment. Assessment of his frontal lobe functions was normal except poor 26 **WP(C).No. 29780 of 2018** word fluency. Mr.Moidutty seemed to have a reasonable judgement as regarding the extent of his property, the existing family disputes, the way he should handle the property. It also seemed that he is able to take care of himself. Impression: Mr.Moidutty is having features of Dementia due to the head injury. It seems that he is currently having a stable level of functioning. His judgement regarding the illness, his current situation and assets seem to be reasonable. 18. Again, the averments made in the counter affidavit filed by respondents 2 and 3 project their concern about the properties held by the petitioner and not with respect to the person of the petitioner. A number of documents are produced by the respondents 2 and 3 to point out that the petitioner had been under psychiatric treatment for long. The petitioner also does not dispute that. But however, the intensity of his cognitive impairment is not grievous enough to declare him as a mentally ill person. Both the Medical Board 27 ## **WP(C).No. 29780 of 2018** at Kozhikode and the Associate Professor of Psychiatry of Government Medical College Ernakulam has reported that he is able to look after himself and his judgment regarding his illness, current situation and assets seem to be reasonable. It is also very pertinent that Ext. P8 document executed by the petitioner was witnessed by the two sons of the petitioner in his two wives, which document was executed in the year 2014. 19. What comes to fore on an examination of the entire records is that the petitioner has some cognitive impairment and the petitioner is quite aware of his illness which was caused due to an accident in the year 1985. The petitioner is aware of his illness and he had been carrying on independently all these years after the accident, which caused the injury in 1985, leading to the mild mental impairments as noticed in the reports, but not warranting an impatient treatment or even confinement from society. The petitioner had been 28 **WP(C).No. 29780 of 2018** working as a teacher in a Government School and he retired from his employment as Drawing Teacher and is still associating himself with the school and the students and also imparting drawing lessons to the interested students. The Principal and the Staff of the Government school have also willingly agreed to his participation in the activities of the school, which is also within the knowledge of the respondents 2 and 3. There has been no complaints about the conduct or actions of the petitioner form the persons with whom he regularly interacts, the teachers and students of the school, nor from his neighbours and not at all from any member of the larger community and society in which he lives. The petitioner was subjected to a detailed examination on inpatient admission in the Government Medical College by a Board of Psychiatrists constituted from the Department of Psychiatry. They had found him to be normal and able to look after himself. 29 **WP(C).No. 29780 of 2018** 20. The learned District Judge had not thought it fit to set aside the said report and had merely directed examination at a higher centre without anything more than an observation made by the Medical Board, as an abundant caution that any further diagnosis would have to be carried out by a higher neurological center. The petitions filed by the 2[nd] respondent before the District Court, Exts.P5 and P6 does not indicate any circumstance, involving the petitioner which motivated the 2[nd] respondent to file an application for a further examination. As is stated above, there has been no complaints from any quarters about the conduct or activities of the petitioner. There is also no allegation by the respondents 2 and 3 as to any behavioural problems displayed by the petitioner in his interaction with the respondents 2 and 3. In fact, respondents 2 and 3 does not at all speak of any instance in the past so many years of having any interaction with the petitioner. They 30 **WP(C).No. 29780 of 2018** claim that the petitioner is living with his first wife and son and merely assume that they are appropriating the properties of the petitioner by misleading him and that he is incapable of looking after his affairs. The medical examination by the Board and that conducted by the Psychiatrist in my Chambers provide sufficient material to satisfy oneself of the condition of the petitioner, who is able to manage his affairs despite the mild impairment to speech and cognition, which are apparent but not serious. 21. Coupled with this is the absolute lack of pleadings as to any incident involving the petitioner, giving rise to a suspicion of mental illness requiring treatment, or a mental break down warranting admission in a institute. This Court is of the opinion that the petition filed before the District Court is misconceived, oppressive and results in undue harassment of the petitioner in contravention of his fundamental 31 ## **WP(C).No. 29780 of 2018** right as available under Article 21 of the Constitution of India. A Medical Board, who examined the petitioner for one week and the Psychiatrist who has interacted with him for one hour in my Chambers has found the petitioner to be quite capable of looking after himself and his affairs. Though confessing to lack of any expertise in identifying a mental illness, this Court exercising jurisdiction under Art. 226, had personal interaction with the petitioner which did not reveal any character or behavioural trait warranting a further evaluation and not at all an admission to a medical institution. The minimal cognitive impairment the petitioner has does not in any way affect his normal life and there is no behavioural trait complained of by anybody which would necessitate a detailed neuro-psychological examination at a higher centre as of now. There is no ground alleged or circumstance projected in the petitions filed by the respondents before the 32 ## **WP(C).No. 29780 of 2018** District Court or the counter affidavit filed before this Court which would necessitate such neuro-psychological evaluation of the petitioner. The grounds are only that the petitioner has been suffering from some cognitive impairment by reason of an injury caused to him in an accident, for which he has been under regular treatment and medication from 1985 itself. Coupled with this is the apprehension that the petitioner may deal with the properties in such a manner divesting the respondents 2 and 3 of any chance for inheritance after his death; which alone is the cause of action decipherable. 22. The petitioner had been constantly living in the society and had been employed as a teacher in a government school and continues his activities in the school after retirement. The petitioner has also been found to be quite competent to deal with his properties and is quite aware of his family problems as also the manner in 33 ## **WP(C).No. 29780 of 2018** which his properties are to be dealt with. In the facts and circumstances of this case, the discussion about the individual dignity as a facet of Article 21 of the Constitution of India as spoken of in the leading judgment of the Chief Justice of India in _**Common Cause (a registered Society)**_ v. _**Union of India and another [2018 5 scc 1]**_ , is apposite. Dignity has been restated as the most fundamental aspect of the right to life. Though the observations were made dealing with the sensitive issue of euthanasia, the right to live with dignity has been stated to be “a preserved concept of bodily autonomy and right to privacy”. A person cannot be unduly subjected to repeated mental examination merely for reason of he having a slight cognitive impairment, caused by reason of an accident, especially when there is absolutely no behavioural trait complained of or no untoward incident of an action as against the society in which he lives in; which alone would require an 34 **WP(C).No. 29780 of 2018** evaluation or treatment in a confined atmosphere. As has been found, the motivation is only the apprehension of the petitioner alienating his properties, which he is quite entitled to in his life time and the natural consequence of this resulting in there being no property available for inheritance after his death cannot be the cause of an application under the MH Act. The mere consequence of the wife and children being deprived of inheritance, on the inevitable death of the husband cannot lead to his being subjected to such harassment on unfounded, repeated allegations of mental impairment, all with an eye on the properties and its preservation in the name of the petitioner till his death. If it is continued to be permitted, the petitioner would definitely be subjected to an in-dignified existence, probably pushing him into abysmal depths of depression, thus turning the minor cognitive impairment into a total mental break 35 **WP(C).No. 29780 of 2018** down. This Court on the facts of the circumstances of the case is of the opinion that that Ext.P7 order has to be set aside, especially for no reasonable cause having been shown to send the petitioner for any mental evaluation. However as has been held in _**Thirumala Tirupati Devasthanams**_ (supra) _“To be remembered that no fundamental right is being violated when a Court of competent jurisdiction is deciding, rightly or wrongly, matters before it”.(sic)_ This Court would not invoke the extra-ordinary power lest it undermine the confidence of the subordinate Court and demoralise it. The petition is filed before the competent Court but the District Court should realize the onerous responsibility conferred on it under the MH Act, which if invoked interferes with the free movement of a citizen, who otherwise is a free agent in so far as his personal affairs are concerned whether it be of his person or estate and impinges upon his right to deal with his 36 **WP(C).No. 29780 of 2018** properties. Though an application under the MH Act is quite within the jurisdiction of the District Court, there are two types of jurisdictional errors as pointed out in _**Anisminic Ltd. v. Foreign Compensation Commission (1969 2 AC 147).**_ The House of Lords for the first time rejected the idea that jurisdiction of a Tribunal or authority could only be questioned in the first instance as to the competence to embark upon an enquiry. It was held that the jurisdictional aspect could be questioned on the competence to conduct an enquiry and also with respect to excesses of jurisdiction committed in the course of such enquiry. The District Court hence should examine whether on the averments as made in the suit there is anything to invoke the jurisdiction as conferred under the MH Act and continue the proceedings especially based on the observations made herein above. The writ petition is filed under Art 226 and since it is thought fit that the extreme power of issuance of a writ of 37 **WP(C).No. 29780 of 2018** prohibition need not be invoked, this Court would invoke its powers conferred under Article 227, to direct the District Court to implead the petitioner herein as an eo-nominee party and hear on the question of jurisdiction and decide whether the power conferred under the M H Act is to be invoked, on the pleadings as available now. The petitioner and the respondents 2 & 3 will also file a copy of their respective pleadings in the writ petition before the trial Court, however no amendment of pleadings would be necessary or allowed. The parties shall appear before the Court and file the copies of the writ petition and counter affidvit on or before 03.01.2019 and the District Court shall hear the parties and decide the issue of maintainability wihin one month thereafter. The Writ Petition is disposed of. The parties to suffer their respective costs. ## **Sd/-** ## **K.VINOD CHANDRAN** SB/21/11/2018 ## **JUDGE** 38 **WP(C).No. 29780 of 2018** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 22ND JANUARY 2016 IN WRIT PETITION (CIVIL) NO. 14173/2015 PASSED BY THIS HON'BLE COURT.** **EXHIBIT P2 TRUE COPY OF THE ORIGINAL PETITION FILED BY THE 2ND RESPONDENT HEREIN AS OP (MENTAL HEALTH ACT) NO. 184/2015 BEFORE THE DISTRICT COURT, MANJERI. EXHIBIT P3 TRUE COPY OF LETTER ISSUED BY THE 3RD RESPONDENT TO THE HEADMASTER OF GOVERNMENT RAJAS HIGHER SECONDARY SCHOOL, KOTTAKKAL.** **EXHIBIT P4 TRUE COPY OF MENTAL CONDITION REPORT DATED 07/06/2016 SUBMITTED BY MEDICAL BOARD BEFORE THE DISTRICT COURT, MANJERI.** **EXHIBIT P5 TRUE COPY OF I.A. NO. 1349/2016 FILED BY THE 2ND RESPONDENT IN O.P.(MENTAL HEALTH ACT)NO. 184/2015 BEFORE THE DISTRICT COURT, MANJERI. EXHIBIT P6 TRUE COPY OF I.A. NO. 1073/2017 FILED BY THE 2ND RESPONDENT IN O.P.(MENTAL HEALTH) NO. 184/2015 ON THE FILE OF THE DISTRICT JUDGE, MANJERI.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 11/07/2018 IN I.A. NO. 1073/2017 LIN OP (MENTAL HEALTH) NO. 184/2015 PASSED BY ADDL. DISTRICT JUDGE-III, MANJERI.** **EXHIBIT P8 TRUE COPY OF THE SALE DEED 31/10/2014 REGISTERED AS DOCUMENT NO. 4405/2014 BEFORE THE SUBREGISTRAR, KOTTAKKAL. EXHIBIT P9 TRUE COPY OF THE CERTIFICATE DATED 26.10.2018 ISSUED BY THE PRINCIPAL OF GOVERNMENT RAJAH'S HIGHER SECONDARY SCHOOL, KOTTAKKAL EXHIBIT TRUE COPY OF THE NEWS ITEM PUBLISHED IN P10 MATHRUBHOOMI DAILY DATED 18.10.2018** 39 **WP(C).No. 29780 of 2018** ## **RESPONDENTS EXTS:** **EXT R2(A) TRUE COPY OF TREATMENT SUMMARIES AND PRESCRIPTIONS ISSUED BY DR.THOMAS IYPE, NEUROLOGIST, MEDICAL COLLEGE, HOSPITAL CALICUT & O.N.VASUDEVAN, CONSULTANT PSYCHIATRIST, CHALAPURAM, CALICUT FOR THE PERIOD 1987 TO 2014** **EXT R2(B) TRUE COPY OF LEASE DEEDS ENTERED IN THE YEAR 2007** **EXT R2(C) TRUE COPY OF LEASE DEEDS ENTERED IN THE YEAR 2014** **EXT R2(D) TRUE COPY OF LEASE DEEDS ENTERED IN THE YEAR 2015 WITH THE 6TH AND 7TH RESPONDENTS** **EXT R2(E) TRUE COPY OF RELEVANT PAGE OF THE ENCUMBRANCE CERTIFICATE ISSUED FROM THE REGISTRATION OFFICE TO THE PETITIONER** **EXT R2(F) TRUE COPY OF DISCHARGE SUMMARY ISSUED BY THE IQRAA CENTRE OF PSYCHIATRIC CARE DATED 03.05.2013.** **// true copy //** **P.A to Judge**