PRASAD M.N. & SALINI S. v. STATE OF KERALA & SIVAN V. & BIJU SCARIA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** **Crl.MC.No.1128 OF 2019(A)** **AGAINST THE ORDER/JUDGMENT IN CMP 4847/2018 OF CHIEF JUDICIAL MAGISTRATE , ALAPPUZHA** **CRIME NO.1796/2018 OF ALAPPUZHA NORTH POLICE STATION , Alappuzha** ## **PETITIONER/S:** - **1 PRASAD.M.N, AGED 36 YEARS S/O. LATE NARAYANAN, MELEPOKKATTU (H), VARANADU P.O., CHERTHALA, ALAPPUZHA, PIN-688 539.** - **2 SALINI S., AGED 34 YEARS W/O. PRASAD M.N., MELEPOKKATTU (H), VARANADU P.O., CHERTHALA, ALAPPUZHA, PIN-688 539.** **BY ADVS. SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV PRASANTH V** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 SIVAN V., AGED 66 YEARS, S/O LATE VELAYUDHAN, NIKARTHIL (H), KOKKOTHAMANGALAM P.O., CHERTHALA, ALAPPUZHA, PIN688 527.** - **3 BIJU SCARIA, EXECUTIVE DIRECTOR SANTHWANAM COUNSELLING CENTRE,NO 40,GANDHI NAGAR,CHERTHALA,PIN-688524(AS PER ORDER DATED 19/3/19 IN CRL MA 2/19)** **R2, R4 BY ADV. SRI.M.G.SREEJITH R3 BY ADV. SRI.G.PADMAKUMAR** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.6.2019, THE COURT ON 22.11.2019 PASSED THE FOLLOWING:** **(C.R)** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 1128 of 2019 ================== Dated this the 22[nd] day of November, 2019 **O R D E R** The factual aspects projected in this Criminal Miscellaneous Case filed under Sec. 482 of the Cr.P.C. are as follows: The petitioners herein are husband and wife and their marriage was solemnized on 16.5.2018 and the solemnization of the marriage has also been registered under the provisions of the Kerala Registration of Marriage (Common) Rules, 2008. That the petitioners are living together in the house of the 1[st] petitioner, along with his mother. It is pointed out that there was an intense love affair between the petitioners and the marriage proposal was strongly opposed by the parents of the 2[nd] petitioner. Further that the 2[nd] petitioner's elder sister is a practising lawyer at Alappuzha and Cherthala Bar and that as per her instructions, the 2[nd] respondent, who is the father of the 2[nd] petitioner, has filed private criminal complaint as per Anx. A5 alleging that the 1[st] petitioner has kidnapped the 2[nd] petitioner and that the 2[nd] petitioner is a mentally unfit person and that the 1[st] petitioner is ill-treating the 2[nd] petitioner and that the 1[st] petitioner has thereby committed offences under Sec. 120B, 344, 347, 361, 363, Crl.M.C.1128/19 - : 3 :- 364A, 365, 366, 368, 372 and 506(ii) of the I.P.C. Pursuant to the directions issued by the learned Magistrate under Sec. 156 (3) of the Cr.P.C., the Police has registered Anx. A6 FIR in Crime No. 1796/2018 of Alappuzha North Police Station, for the abovesaid offences. Thereafter the Police has conducted an intense and extensive investigation and has filed Anx. A7 final report/charge sheet dated 3.10.2018 in the abovesaid Crime No. 1796/2018 of Alappuzha North Police Station, before the Chief Judicial Magistrate's Court, Alappuzha. In Anx.A7 final report is submitted as a refer report, wherein the Police has conclusively found that all the allegations raised in Anx. 5 and Anx. A6 are false and that the case is only to be referred. 2. Subsequently, it appears that the 2[nd] respondent has filed Anx. A8 Criminal Miscellaneous Petition No.4847/2018 purportedly under Sec.101(3) of the Mental Healthcare Act, 2017 (Mental Health Act, 2017) alleging that the 2[nd] petitioner is a mentally ill person and that 1[st] and 2[nd] petitioners herein come within the prohibited degree of relationship and also placing reliance on Anx.A-9 certificate dated 10.5.2018 said to have been issued by the 3[rd] respondent herein, who is stated to be running a counseling centre, etc. Crl.M.C.1128/19 - : 4 :- 3. The prayer in Anx.A-8 petition said to have been filed under Sec. 101(3) of the Mental Health Act, 2017, is that as the 2[nd] petitioner herein is a mentally ill person, necessary proceedings should be initiated as provides under Sec. 102 of the Mental Health Act, 2017. The 1[st] petitioner herein alone has been arrayed as the respondent in Anx.A8 petition. The 1[st] petitioner has filed detailed objections as per Anx.A-10 in respect of the matters raised in Anx. A8 petition. Anx.A-12 is the proceedings sheet of the Chief Judicial Magistrate Court, Alappuzha, who has dealt with Anx. A8 Criminal Miscellaneous Petition No.4847/2018. On 22.12.2018, the learned Magistrate had directed to produce the 2[nd] petitioner herein. The proceedings sheet would further disclose that on 1.1.2019, the 2[nd] petitioner herein was produced and the learned Magistrate has clearly noted that on interaction, it is found that the 2[nd] petitioner appears to be conscious and oriented and not disturbed in any manner as alleged. Her educational qualifications and details were also produced. However, it is specifically noted that the 2[nd] respondent herein (petitioner therein) was absent and there is no representation. The learned Magistrate has then posted the matter for further enquiry. On 8.1.2019, the petitioner therein/R-2 herein and the Crl.M.C.1128/19 - : 5 :- respondent therein/1[st] petitioner herein, were present and the 2[nd] petitioner herein was also present and it was adjourned to 15.1.2019 for objection and further inquiry. A perusal of Anx. A-12 proceedings sheet would further disclose that on 15.1.2019, 24.1.2019 and 25.1.2019, the 2[nd] respondent herein/the petitioner therein was absent. On 24.1.2019 the Chief Judicial Magistrate, Alappuzha, has passed the impugned Anx.A-13 order on Criminal Miscellaneous Petition No.4847/2018 directing that, in view of Anx. A9 certificate issued by the Santhwanam Counselling Centre, the 2[nd] petitioner, who is allegedly to be a mentally ill person, should be conveyed to a mental health establishment for assessment and treatment of as envisaged under Sec. 102 of the Mental Health Act, 2017. It is this order at Anx. A 13 that is under challenge in this petition. 4. Heard Sri.Thomas.M.Jacob, learned counsel appearing for the petitioners, Smt.Priya Shanavas, learned Prosecutor appearing for the 1[st] respondent State of Kerala and Sri.M.G.Sreejith, learned counsel appearing for respondent No.2. Though additional R-3 has been duly served, he has not chosen to enter appearance through counsel. 5. From the pleadings and materials on record, it is seen that Crl.M.C.1128/19 - : 6 :- there was an intense love affair between the 1[st] petitioner & the 2[nd] petitioner herein and the proposal regarding the marriage was strenuously opposed by the 2[nd] respondent (who is the father of the 2[nd] petitioner) and her other family members. Later, the marriage between the petitioners has been duly solemnized. The 2[nd] respondent, who is the father of the 2[nd] petitioner, has chosen to file Anx.A5 private criminal complaint Crl.M.P.No.7715/2018 before the learned Magistrate alleging that the 1[st] petitioner and his family members have kidnapped the 2[nd] petitioner and alleging that the 2[nd] petitioner is a mentally unfit person and that the 1[st] petitioner is illtreating her and that the accused persons therein have thus committed the offences as per Secs.120B, 344, 347, 361, 363, 364A, 365, 366, 368, 372, 506(ii) of the I.P.C. The learned Magistrate had directed the Police to register a crime and conduct investigation in the matters in Anx. A5 private criminal complaint. Thereupon the Police has filed Anx. A6 FIR, which has led to the registration of Crime No.1796/2018 of Alappuzha North Police Station, for the abovesaid offences. Copy of Anx.A6 FIR in Crime No. 1796/2018 of Alappuzha North Police Station has been duly transmitted by the Police to the Chief Judicial Magistrate's Court, Alappuzha, as can be seen from the Crl.M.C.1128/19 - : 7 :- endorsement therein. Thereafter, the Police has conducted an intense and extensive investigation and has submitted Anx. A7 final report as a refer report, stating that the entire allegations raised therein are false and that the case is only to be referred as false. It is later that the 2[nd] respondent, who is the father of the 2[nd] petitioner, has chosen to file Anx. A8 Criminal Miscellaneous Petition No.4847/2018 before the Chief Judicial Magistrate's Court, Alappuzha, which is purportedly under Sec. 101(3) of the Mental Health Act, wherein the 1[st] petitioner herein alone has been arrayed as the sole respondent therein. The allegation in Anx. A8 is to the effect that the 2[nd] petitioner herein is a mentally ill person, which is contended on the basis of Anx. A9 certificate said to have been issued by the 3[rd] respondent herein. In Anx. A9 certificate is said to have been issued by the 3[rd] respondent, who claims to be running a counseling centre by name Santhwanam Counselling Centre, Cherthala, Alappuzha District. The qualifications of the 3[rd] respondent are not discernible anywhere in Anx. A9 certificate. It is stated in Anx. A9 that the 2[nd] petitioner herein had gone to his clinic for counseling and she was found to be suffering from problems of concentration in decision making and that she shows the symptoms of depression and bi-polar Crl.M.C.1128/19 - : 8 :- disorder and that some time her talk created a feeling of paranoic behaviour and that the reason may be of her failed marriage proposal and related issues and that she feels that she is a abandoned from the society and she is alone. It is alleged in Anx.A8 by the 2[nd] respondent that presumably the reason for the problems of the 2[nd] respondent is her failed marriage proposal and related issues. Further it is stated that that counseling alone cannot save her and she needs some sort of medication and she may be referred to a good psychiatrist for better results, etc. 6. The 1[st] petitioner herein, who has been made the sole respondent in Anx. A8 petition, has filed detailed objection thereto, as per Anx. A-10. Anx.A-12 is the proceedings sheet of the Chief Judicial Magistrate's Court, Alappuzha, who has dealt with Anx. A8 Criminal Miscellaneous Petition No.4847/2018. On 22.12.2018, the learned Magistrate had directed the 1[st] petitioner herein/ respondent therein to produce the mentally ill person on 1.1.2019 at 3 p.m. On 1.1.2019, it is seen that both the petitioners are present and the learned Magistrate has specifically endorsed therein that, on his interaction, he has found that the lady (2[nd] petitioner herein) appears to be conscious oriented and not disturbed in any manner as alleged Crl.M.C.1128/19 - : 9 :- by the 2[nd ] respondent and that her detailed qualifications and details have also been perused by the learned Magistrate. Further it is stated that the petitioner therein/ R-2 herein was absent and there is no representation for him also. The learned Magistrate has thereupon ordered that the matter be posted for further inquiry on 8.1.2019. On 8.1.2019, both the parties concerned as well as the 2[nd] petitioner were present and it was adjourned for objections and further enquiry to 15.1.2019. The endorsements made by the learned CJM on 15.1.2019 and 19.1.2019, 25.1.2019 would make it clear that the 2[nd] respondent herein/petitioner therein was absent in all those postings even though both the petitioners herein were present. It appears that R-2 was represented through counsel. On 24.1.2019, the learned Magistrate has taken on record Anx. A9 certificate herein as the certificate produced as Anx. C1 therein. Thereupon the learned Magistrate has passed the impugned Anx.A-13 dated 24.1.2019 on Criminal Miscellaneous Petition No.4847/2018 directing that in view of Ext.C1 certificate/Anx. A-9 herein it is ordered that the 2[nd] petitioner, who is alleged to be a mentally ill person, should be conveyed to a mental health establishment for assessment and treatment in terms of Sec. 102 of the Mental Health Act. Crl.M.C.1128/19 - : 10 :- 7. The learned counsel for the petitioners has raised a specific plea that the sister of the 2[nd] petitioner, who is a practising Advocate in the Bar at Alappuzha and Cherthala, is behind the entire mischief purported on the petitioners herein, as she has seriously opposed to the marriage of the 2[nd] petitioner. 8. The 3[rd] respondent herein , who is stated to have issued Anx. A9 certificate, was personally present before this Court on one day and thereafter, he has not chosen to appear through counsel and has not submitted any pleadings. It appears that the 3[rd] respondent is not qualified in psychiatry, which is a speciality branch of medicine and it is well known that to become qualified psychiatrist, one should have MD in psychiatry, which can be acquired only after securing an MBBS degree in medicine. It is seen that the 2[nd] respondent has no case that the 3[rd] respondent is qualified in clinical psychology. It appears that the 3[rd] respondent has a Ph.D. in Counselling and it is claimed that he is the executive director of a Conselling centre, called Santhwanam Counseling Centre, #40, Gandhi Nagar, Chertha. It is not known as to how a person, who is only conducting counseling centre and who is not qualified either in psychiatry or clinical psychology, can have the professional competence to adjudge as to Crl.M.C.1128/19 - : 11 :- whether any person is suffering from mental illness like bi-polor disorder or paranoic behaviour. Secs.101 and 102 of the Mental Health Act, 2017 read as follows: _“Sec.101: Report to Magistrate of person with mental illness in private residence who is ill-treated or neglected.--_ _(1) Every officer in-charge of a police station, who has reason to believe that any person residing within the limits of the police station has a mental illness and is being ill-treated or neglected, shall forthwith report the fact to the Magistrate within the local limits of whose jurisdiction the person with mental illness resides._ _(2) Any person who has reason to believe that a person has mental illness and is being ill-treated or neglected by any person having responsibility for care of such person, shall report the fact to the police officer in-charge of the police station within whose jurisdiction the person with mental illness resides._ _(3) If the Magistrate has reason to believe based on the report of a police officer or otherwise, that any person with mental illness within the local limits of his jurisdiction is being ill-treated or neglected, the Magistrate may cause the person with mental illness to be produced before him and pass an order in accordance with the provisions of Section 102._ ## Sec. 102 reads as follows: _“Sec.102: Conveying or admitting person with mental illness to mental health establishment by Magistrate.- (1) When any person with mental illness or who may have a mental illness appears or is brought before a Magistrate, the Magistrate may, order in writing--_ - _(a) that the person is conveyed to a public mental health establishment for assessment and treatment, if necessary and the mental health establishment shall deal with such person in accordance with the provisions of the Act; or_ - _(b) to authorise the admission of the person with mental illness in a mental health establishment for such period not exceeding ten days to enable the medical officer or mental health professional in charge of the mental health establishment to carry out an assessment of the person and to plan for necessary treatment, if any._ _(2) On completion of the period of assessment referred to in subsection (1), the medical officer or mental health professional in charge of_ Crl.M.C.1128/19 - : 12 :- _the mental health establishment shall submit a report to the Magistrate and the person shall be dealt with in accordance with the provisions of this Act.”_ 9. Sub section (1) of Sec. 101 stipulates that every officer incharge of a police station, who has reason to believe that any person residing within the limits of the police station, has a mental illness and is being ill-treated or neglected, shall forthwith report the fact to the Magistrate within the local limits of whose jurisdiction the person with mental illness resides. “Mental Illness” is defined in Sec. 2(s) of the abovesaid Act, which reads as follows: _**“Sec. 2: Definitions.-** (1) In this Act, unless the context otherwise requires,--_ _(a)....._ _xxx xxx xxx_ _(s) "mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;”_ 10. A perusal of Anx. A5 private criminal complaint and Anx. A6 FIR would make it clear that allegations of the 2[nd] respondent are the 2[nd] petitioner herein is a mentally ill person and that further the 1[st] petitioner and his family members have kidnapped her. Various other allegations are also made therein, such as the relationship between the petitioners would come within the prohibited degree of Crl.M.C.1128/19 - : 13 :- relationship for barring marriage, as per the provisions of law, etc. The SHO, who is the investigating officer in Anx.A6 FIR has conducted intense and extensive investigation and has found that the entire allegations raised by the 2[nd] respondent are false and that the matter is only to be referred. In the statutory scheme, Sec. 101(1) mandates that if the SHO concerned, who has reason to believe that any person residing within the limits of the police station, has a mental illness and is being ill-treated or neglected, then he shall forthwith report the fact to the Magistrate within the local limits of whose jurisdiction the person with mental illness resides. Of course, sub section (2) would also stipulates any person concerned can also set in motion the process in that regard. Sub section (3) of Sec. 101 would crucially mandate that if the Magistrate has reason to believe, based on the report of a police officer or otherwise, that any person with mental illness within the local limits of his jurisdiction is being ill-treated or neglected, then the Magistrate may cause the person with mental illness to be produced before him and pass an order in accordance with the provisions of Sec. 102. Therefore, one of the prime requisites for fulfilling the jurisdictional facts for invocation of the provisions contained in Sec. 101(3) of the Mental Health Act, 2017 Crl.M.C.1128/19 - : 14 :- is that the Magistrate should have reason to believe based either on the report of a police officer or otherwise, that a person with mental illness within the local limits of his jurisdiction is being ill-treated or neglected, etc. then only the Magistrate can assume jurisdiction. It is only after crossing the threshold situation, envisaged in Sec. 101 of the Mental Health Act that learned Magistrate will have to get into the aspects dealt with in Sec. 102 of the Act. 11. The Apex Court has held in the decision in _**A.S.Krishnan & Ors. v. State of Kerala**_ [(2004) 11 SCC 576] in paras 9 and 10 thereof as follows: _“9. Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of "intention" or "knowledge" or "reason to believe". We are now concerned with the expressions "knowledge" and "reason to believe". "Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is another fact of the state of mind. "Reason to believe" is not the same thing as "suspicion" or "doubt" and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. Likewise "knowledge" will be slightly on higher plane than "reason to believe". A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. S.26, IPC explains the meaning of the words "reason to believe" thus._ _26. "Reason to believe". A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise"._ _10. In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe" have to_ Crl.M.C.1128/19 - : 15 :- _be deduced from various circumstances in the case. (See Joti Parshad v. State of Haryana (AIR 1993 SC 1167) (1993 AIR SCW 224: 1993 CriLJ 413)).”_ 12. Further, the Apex Court has relied on the abovesaid dictum laid down in A.S.Krishnan's case supra, in subsequent decisions as in Dr.Sr.Tessy Jose v. State of Kerala [2018 (3) KLT 934 (SC)], para 10. Reference in this connection could be pertinently made to the decision in Joti Prasasd v. State of Haryana (AIR 1993 SC 1167). So it is well settled that “ knowledge” will stand on a higher level of state of mind in comparison to “reason to believe”. Whereas “reason to believe” as understood in Sec. 26 of the I.P.C., is another fact of the state of mind and is not the same thing as “suspicion” or “doubt”. So in substance, “reason to believe” means that a person must have reason to believe in the circumstances are such that a reasonable person would by probable reasoning conclude or infer regarding the nature of the thing concerned and the circumstances are such as to create a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. In the instant case, there were no objective materials available before the learned Magistrate as conceived in Sec. 101, furnishing him “reason to believe”, that the 2[nd] petitioner has mental illness as Crl.M.C.1128/19 - : 16 :- understood in Sec. 2(s) of the Act and further that the 2[nd] petitioner is being ill-treated or neglected by the 1[st] petitioner. 13. In the instant case, the 2[nd] respondent has made allegations that the 2[nd] petitioner herein is a mentally unfit person and that she was kidnapped by the 1[st] petitioner herein, etc. as can be seen from a reading of Anx. A5 criminal complaint filed by R-2 as well as Anx. A6 FIR got registered at the instance of R-2. The Police has made exhaustive and and intense probe into all aspects of the matter in relation to the said allegations and has submitted Anx. A7 refer report to the Chief Judicial Magistrate, Alappuzha that the said entire allegations raised in Anxs. A5 and a6 are false and that the matter is to be closed and referred as false. Whereas the 2[nd] respondent has merely reiterated the abovesaid allegations in the Anx.A-8 petition styled as one filed under Sec. 101(3) of the Mental Health Act, 2017. Therefore, one of the most important and prime factual inputs to be given by the SHO is not only conspicuously absent in this case but on the other hand, the findings made by the SHO in Anx. A7 refer report would negate the entire allegations made by the 2[nd] respondent. True that from a reading of sub section (2) of Sec. 101 of the Mental Health Act, it can be seen that the factual inputs to be Crl.M.C.1128/19 - : 17 :- given by the Police officer are not the only permissible modality =and the Magistrate, if he has reason to believe could also act on the basis of information that he has secured otherwise. But crucial and important aspect of the matter is that the learned Magistrate should have reasons to believe on the basis of some other reliable source of information that the person like the 2[nd] petitioner herein is suffering from mental illness as defined in Sec. 2(s) of the Mental Health Act, 2017. The only other source in this case is the unilateral allegations made by the 2[nd] respondent in Anx. A8 petition. The main source relied on in Anx. A8 is Anx. A9 certificate said to be have been issued by a person, who is running a counseling centre. Respondents 2 and 3 do not have any case that the 3[rd] respondent, who has issued Anx. A9 certificate, is qualified either in psychiatry or in clinical psychology and is said to be only well-versed in counseling. There are no materials to show that the 3[rd] respondent has professional competence to say about the alleged mental illness of a person like the 2[nd] petitioner and how he is professionally competent to say that the person concerned is suffering from bi-polar mental disorder, etc. Moreover, one of the main information conveyed in Anx. A9 certificate as well as in Anx. A8 petition is that the main Crl.M.C.1128/19 - : 18 :- problems for the 2[nd] petitioner had arisen on account of her failed marriage proposal. It appears from a reading of the impugned materials that the parents of the 2[nd] petitioner had earlier mooted a marriage proposal. The said marriage proposal could not be fructified and the 2[nd] petitioner later decided to marry the 1[st] petitioner, despite the stiff opposition of her family members. So even going from a reading of Anxs. A-8 and A-9, it can be seen that one of the main allegations for projecting the case that the 2[nd] petitioner is having mental illness, etc. is on account of the earlier failed marriage proposal, etc. The learned Magistrate has not secured any objective materials to even come to the remote conclusion that the 2[nd] petitioner herein is in any manner suffering from any mental illness as envisaged in Sec. 2(s) of the Mental Health Act, 2017. On the other hand, Anx. A-12 proceedings sheet of the learned Magistrate would make it clear like the day light that on 1.1.2019, the learned Magistrate himself had occasion to have detailed interaction with the 2[nd] petitioner and he found that the lady was having conscious orientation and was not disturbed in any manner as alleged by the 2[nd] respondent and that she is having very high educational qualifications, etc. Further, the 2[nd] respondent has been consistently Crl.M.C.1128/19 - : 19 :- absent in most of the days before the court below concerned as can be seen from Anx. A-12 as aforestated. In spite of the abovesaid clear satisfaction made by the learned Magistrate on 1.1.2019 as can been seen from Anx. A-12, the learned Magistrate would proceed at a tangent and would hold that the 2[nd] petitioner, who is allegedly to be mentally ill person should be conveyed to the mental health establishment for assessment and treatment as per Sec. 102 of the Act. A reading of Sec. 102 will make it clear that the Magistrate will get jurisdiction to order for conveying or admitting the person to the mental health establishment, only if the Magistrate should have “reason to believe” that the person concerned is either suffering from mental illness or that in his considered opinion, the person concerned may have mental illness, etc. Therefore, the crucial element to be satisfied before issuing an order in terms of Sec. 102 (1) of the Mental Health Act, 2017, is that the Magistrate should have “reason to believe” on the basis of objective materials and considerations that the person concerned is either having mental illness or may have mental illness, before invoking the power under Sec. 102(1) of the Act so as to order that the person concerned should be conveyed to a mental health institution as envisaged therein. In the instant case, no Crl.M.C.1128/19 - : 20 :- such objective materials are placed before the learned Magistrate and the learned Magistrate himself says in the impugned Anx. A-13 proceedings that the 2[nd] petitioner is only alleged to be a mental health person. Even according to the learned Magistrate, the only case is that the 2[nd] respondent herein, who is the complainant, is having an allegation that the 2[nd] petitioner is a mentally ill person. So also, the learned Magistrate himself was fully satisfied on 1.1.2019 after detailed interaction with the 2[nd] petitioner that she was having conscious orientation and that she was not disturbed in any manner as alleged either in Anx. A8 petition or in Anx. A9 certificate issued by the counseling cetnre. Therefore, the exercise of jurisdiction by the learned Magistrate as per Anx. A-13 order is vitiated by illegality and impropriety and as the basic jurisdictional facts required for coming either to the stage of Sec. 101(3) of the Mental Health Act or Sec. 102(1) of the Mental Health Act has not been duly satisfied in the facts and circumstances of the case. 14. In the light of the abovesaid aspects, it is ordered the impugned proceedings Anx. A13 is legally vitiated and is liable to be interdicted. That apart, during the pendency of this petition, this Court had directly interacted with the 2[nd] petitioner, in open court, in Crl.M.C.1128/19 - : 21 :- the presence of the learned Advocates on both sides as well as the learned Prosecutor and after detailed interaction, this Court found that the 2[nd] petitioner is a lady of high intelligence and emotional balance and she candidly told this Court that the entire disputes arose as her family members including the 2[nd] respondent wanted to thrust upon her a marriage proposal mooted by the family members, which was not agreeable for her and that she had a love affair with the 1[st] petitioner, which was seriously opposed by her family members, for reasons, only known to them. Further that the Family was taking all steps to thwart her marital relationship with the 1[st] petitioner at any cost by raising false complaints and repeatedly harassing her and disturbing her peace of mind and that in spite of the various difficulties, she has been able to find happiness and harmony in her marital relationship with the 1[st] petitioner. That it is when her family members found that their attempt to initiate criminal proceedings against the 1[st] petitioner was not successful, that the present method of harassing her by filing Anx. A8 petition with the support of Anx. A9 certificate, etc. has been mooted. Further that she is a qualified post graduate, who has taken degree in Bachelor Education and has also passed the highly competitive State level teachers' eligibility test Crl.M.C.1128/19 - : 22 :- conducted by the Government of Kerala and that unless this Court intervenes, the 2[nd] respondent and other family members are out to destroy her marriage with the 1[st] petitioner at any cost. Further that new allegations are made by the 2[nd] respondent that the petitioners are related by prohibited degree of relationship and that the said allegations are factually wrong and false and have been made only to further victimise and harass the 2[nd] petitioner, for having not accepted the marriage proposal mooted by the family members and for having married the 1[st] petitioner. The learned Magistrate has also found that after personal interaction with the 2[nd] petitioner it was found that she is of normal conscious orientation and that she is not disturbed in any manner as alleged by the 2[nd] respondent, etc. This Court also would find that the 2[nd] petitioner is a highly intelligent woman, who is now aged more than 34 years and that she is fully capable taking her own moral and ethical choices, etc. Further, it is seen that the 2[nd] petitioner is a highly qualified lady, who has taken master's degree in Arts in Malayalam Language & Literature as evident from Anx. A-14 degree certificate issued by the Mahatma Gandhi University and she has also taken Degree of Bachelor of Education from the University of Kerala, as can be seen from Anx.A- Crl.M.C.1128/19 - : 23 :- 15. The 2[nd] petitioner has also passed the highly competitive State Eligibility Test conducted in June, 2016 by the Government of Kerala as per Anx. A-16 and she has also qualified in the Kerala Teachers' Eligibility Test conducted by the Government of Kerala as per Anx. A-17. Anx.A-18 is the certificate issued by the College of IT Kerala, wherein it is stated that the 2[nd] petitioner has worked as a teacher at their College at IT Kerala, campus from 11.6.2013 to 28.2.2017 and that they had found her as a responsible, enthusiastic and hardworking teacher during her working tenure there and that she has proved that she is an asset for any organization, etc. 15. Branding a person more particularly a lady as a mentally ill person and passing an order under Sec. 102(1) of the Mental Health Act, 2017, directing that she should be sent to mental health establishment and assessment and treatment, etc. involves extremely grave adverse consequences on the affected person concerned and if it is so done, as in the instant case, without any objective materials and relevant considerations, then it would be not only grossly illegal and irrational, but also would amount to invasion of the Constitutionally guaranteed right to dignified life and right for privacy of a person like the 2[nd] petitioner herein and would thus be Crl.M.C.1128/19 - : 24 :- not only in violation of the provisions contained in the Mental Health Act, 2017, but also in grave derogation of the right to dignified life guaranteed under Art.21 of the Constitution of India. No other contra materials from competent authority like the SHO are now available. Anx. A9 certificate cannot be given any reliance in the matter. In the light of these aspects, the action taken by the learned Magistrate in entertaining the impugned proceedings and in passing an order in the nature of the impugned Anx. A-13 order is thus highly perverse, illegal and improper and would require interdiction. Moreover, it is to be noted that the 2[nd] respondent has filed Anx. A8 application under Sec. 101(3) of the Mental Health Act, 2017 and the prayer is to initiate necessary proceedings for the production of the alleged mentally ill person as provided under Sec. 102 of the said Act. One of the other prime requirements of sub sections (1), (2) or (3) of Sec. 101 is that the alleged mentally ill person should have been ill-treated or neglected. Apart from the crucial aspect that there are no objective materials or facts and attendant circumstances to even remotely justify any finding that the 2[nd] petitioner is a mentally ill person as understood in Sec. 101, there are no materials whatsoever that the 2[nd] petitioner has been neglected or ill-treated by her husband, who is Crl.M.C.1128/19 - : 25 :- the 1[st] petitioner. Admittedly, even going by the pleadings of the 2[nd] respondent, the 2[nd] petitioner has married the 1[st] petitioner and both of them are living together as husband and wife. The 2[nd] petitioner is a highly educated lady, who is having various qualifications and who is aged more than 33 years and the petitioner, her husband, is aged 36 years and according to them, both of them are leading a peaceful and harmonious marital life. In these circumstances, there are no objective materials or indisputable facts and attendant circumstances to even remotely justify a finding that the alleged mentally ill person has been neglected or ill-treated by the person, with whom she is living. Therefore, the prime jurisdictional facts required for the invocation of the proceedings under Sec. 101 and consequently that of Sec. 102 are conspicuously and completely absent in the facts and circumstances of this case. 16. Accordingly, it is ordered that the very initiation of the impugned proceedings as per Anx. A8, which has now led to Anx. A- 13 order, is nothing but a sheer abuse of the court. Now one of the main arguments projected by the learned Advocate appearing for R-2 is mainly that the relationship between the petitioners would come within the prohibited degree of relationship for marriages and that Crl.M.C.1128/19 - : 26 :- their marriage itself is a nullity, etc. The petitioners have made detailed submission that they will not come within the prohibited degree of relationship. Further the learned counsel for the petitioners have pointed out that Sec. 11 of the Hindu Marriage Act would clearly mandate that in the case of any marriage solemnized after the commencement of the Hindu Marriage Act, a marriage could be declared by decree of nullity, if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Sec. 5 of the Hindu Marriage Act, only on the basis of a petition that being presented by either party to the marriage against the other party concerned. That in view of the abovesaid mandate of law, no outside party including the close relatives can file any petition before any court for getting the marriage declared as a nullity on the ground of abovesaid contravention unless it is on the basis of a petition presented by either party to the marriage against the other party, etc. This Court need not concern itself with that aspect, except to note the fact that some of the major thrust of the arguments made on behalf of the 2[nd] respondent was that the very marriage of the petitioners is null and void, etc. and arguments are more made to this Court about the nullity of the marriage than about the mental illness of the 2[nd] petitioner. The Crl.M.C.1128/19 - : 27 :- learned counsel for R-2 has raised a feeble contention that after the filing of the present Crl.M.C., on 6.2.2019, R-2 has recently filed a protest complaint on 6.7.2019 against Anx. A7 refer report dated 3.10.2018. That aspect of the matter can have no bearing on the issue as to whether the learned Magistrate was equipped with objective materials so as to have “reason to believe” about the alleged mental illness of the 2[nd] petitioner and whether she has been ill-treated or neglected, by the 1[st] petitioner, for passing an order in the nature of Anx. A13 dated 24.1.2019. 17. Suffice to say that this Court is satisfied that the impugned proceedings herein is a grave abuse of the process of the court as repeated attempts have been made by the family members of the 2[nd] petitioner for reasons only known to them, to disturb and obstruct the marital life of the petitioners. Such consistent obstructions made by them were not successful and it is only on account of that, it appears that the present attempt by filing Anx. A8 petition appears to have been made. 18. In that view of the matter, it is found that the impugned criminal proceedings at Anxs.A-8 and A-13 is an abuse of the process of the court. Accordingly, it is ordered that all proceedings taken in Crl.M.C.1128/19 - : 28 :- pursuance of Anx.A-8 as against the petitioners including the impugned Anx. A-13 order dated 24.1.2019 will stand quashed. The Registry will forward a copy of this order to the Chief Judicial Magistrate's Court, Alappuzha, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case stand finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** Crl.M.C.1128/19 - : 29 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF MARIAGE CERTIFICATE DATED**| |---|---| ||**16.5.2018 ISSUED BY SECRETARY SREE**| ||**MAHAVISHNU TEMPLE, KAMBIYAKATH, S.L. PURAM.**| |**ANNEXURE A2**|**THE TRUE COPY OF CERTIFICATE OF MARRIAGE**| ||**DATED 22.5.2018 ISSUED BY LOCAL REGISTRAR,**| ||**MARARIKULAM NORTH GRAMA PANCHAYATH.**| |**ANNEXURE A3**|**THE TRUE COPY OF THE PETITION DATED**| ||**16.5.2018 FILED BY 2ND PETITIONER BEFORE**| ||**CIRCLE INSPECTOR, MARARIKULAM POLICE**| ||**STATION.**| |**ANNEXURE A4**|**THE TRUE COPY OF RELEVANT PAGE OF THE**| ||**PETITION REGISTER DATED 16.5.2018 OF THE**| ||**MARARIKULAM POLICE STATION.**| |**ANNEXURE A5**|**TRUE COPY OF C.M.P. NO.7715/2018 OF JFCM-1,**| ||**ALAPPUZHA DATED 22.9.2018.**| |**ANNEXURE A6**|**TRUE COPY OF FIR DATED 25.9.2018 IN CRIME**| ||**NO.1796/2018 OF ALAPPUZHA NORTH POLICE**| ||**STATION.**| |**ANNEXURE A7**|**THE FINAL REPORT DATED 3.10.2018 IN CRIME**| ||**NO.1796/2018 FILED BY SUB INSPECTOR OF**| ||**POLICE, ALAPPUZHA NORTH POLICE STATION,**| ||**BEFOR ECHIEF JUDICIAL MAGISTRATE COURT,**| ||**ALAPPUZHA.**| |**ANNEXURE A8**|**TRUE COPY OF C.M.P.NO.4847/2018 DATED**| ||**22.12.2018 IN THE FILES OF CHIEF JUDICIAL**| ||**MAGISTRATE COURT, ALAPPUZHA.**| |**ANNEXURE A9**|**THE TRUE CERTIFIED COPY OF CERTIFICATE IN**| ||**THE NAME OF DR. BIJU SCARIA PH.D., OF**| ||**SANTHWANAM**<br>**COUNSELLING**<br>**CENTRE**<br>**DATED**| ||**10.5.2018.**| |Crl.M.C.1128/19|<br>- : 30 :-| |---|---| |**ANNEXURE A10**|**THE TRUE COPY OF OBJECTION DATED 5.1.2019**| ||**FILED IN CMP NO.4847/2018 OF CJM ALAPPUZHA.**| |**ANNEXURE A11**|**TRUE COPY OF CMP NO.249/2019 DATED**| ||**18.1.2019 BEFORE THE CJM ALAPPUZHA.**| |**ANNEXURE A12**|**TRUE CERTIFIED COPY OF THE ORDER SHEET IN**| ||**CMP 4847/2018 OF THE CHIEF JUDICIAL**| ||**MAGISTRATE, ALAPPUZHA.**| |**ANNEXURE A13**|**TRUE CERTIFIED COPY OF ORDER DATED**| ||**24.1.2019 IN CMP NO.4847/2018 OF CHIEF**| ||**JUDICIAL MAGISTRATE COURT, ALAPPUZHA.**| |**ANNEXURE A14**|**THE TRUE COPY OF CERTIFICATE OF DEGREE OF**| ||**MASTER OF ARTS IN MALAYALAM LANGUAGE AND**| ||**LITERATURE DATED 6.12.2008 REG.NO.1531,**| ||**ISSUED BY MAHATMA GANDHI UNIVERSITY.**| |**ANNEXURE A15**|**TRUE COPY OF CERTIFICATE OF FACULTY OF**| ||**EDUCATION (B.ED.) IN FIRST-CLASS, DATED**| ||**7.5.2008 ISSUED BY UNIVERSITY OF KERALA.**| |**ANNEXURE A16**|**TRUE COPY OF CERTIFICATE OF STATE**| ||**ELIGIBILITY TEST DATED 30.11.2016.**| |**ANNEXURE A17**|**TRUE COPY OF CERTIFICATE OF KERALA TEACHERS**| ||**ELIGIBILITY TEST, DATED 3.8.2017 ISSUED BY**| ||**SECRETARY BOARD OF EXAMINATION (KTET)**| ||**KERALA.**| |**ANNEXURE A18**|**THE TRUE COPY OF EXPERIENCE CERTIFICATE**| ||**DATED 31.1.2018 ISSUED FROM COLLEGE OF IT-**| ||**KERALA, CHERTHALA.**| |**ANNEXURE A19**|**COPY OF THE CONVERSATION WITH R3 RECORDEED**| ||**BY R2 ON 15.1.2019 IN HER MOBILE PHONE AND**| ||**RETRIEVED INTO A CD.**| |**ANNEXURE A20**|**COPY OF THE TRANSCRIPTION OF CONVERSATION**| ||**IN A-19.**| |**ANNEXURE A21**|**COPY OF THE INVITATION CARD OF JOSEPH AND**| ||**ELIKUTTY JOSEPH.**| Crl.M.C.1128/19 - : 31 :- ## **RESPONDENTS' EXHBITS** |**ANNEXURE R2(1)**|**COPY OF THE VIVAHA PATHRIKA ISSUED BY SNDP**| |---|---| ||**SASKHA.**| |**ANNEXURE R2(2)**|**COPY OF THE COVERING LETTER OF THE VIVAHA**| ||**PATHRIKA.**| |**ANNEXURE R2(3)**|**COPY OF THE LETTER DTD.2.8.2017 BY R2 TO**| ||**SNDP TOWN BRANCH, VAIKOM.**| |**ANNEXURE R2(4)**|**COPY OF THE BOOKING RQEUST DTD.25.7.2017.**| |**ANNEXURE R2(5)**|**COPY**<br>**OF**<br>**THE**<br>**CANCELLATION**<br>**REQEUST**| ||**DTD.2.8.17.**| |**ANNEXURE R2(6)**|**COPY OF THE REPORT OF SHO IN CMP NO.7714**| ||**BEFORE JFCM COURT, ALAPPUZHA.**| |**ANNEXURE R2(7)**|**COPY OF THE APPLICATION DTD.28.9.18 FOR**| ||**CANCELLATION OF THE MARRIAGE**| |**ANNEXURE R2(8)**|**COPY OF THE RECEIPT DTD.28.9.19 BY THE**| ||**MARRIAGE REGISTRAR.**| |**ANNEXURE R2(9)**|**COPY OF THE KERALA REGISTRATION OF**| ||**MARRIAGES (COMMON) RULES, 2008.**| |**ANNEXURE R2(10) **|**COPY OF THE ALLEGED MARRIAGE REGISTER.**| |**ANNEXURE R2(11) **|**COPY OF THE REPLY DTD.2.4.19**| |**ANNEXURE R2(12) **|**COPY OF THE INVITATION CARD OF SAPINDI**| ||**DTD.9.5.18.**| |**ANNEXURE R2(13) **|**COPY OF THE FAMILY TRUST DEED.**| |**ANNEXURE R2(14) **|**COPY OF THE PARTITION DEED.**| |**ANNEXURE R2(15) **|**COPY OF THE LETTER DTD.4.10.18 BY THE**| ||**SECRETARY SNDP SAKHA YOGAM.**| |**ANNEXURE R2(16) **|**COPY OF THE LETTER ISSUED BY THE SECRETARY**| ||**OF SNDP SAKHA YOGAM DTD.4.10.18.**| |**ANNEXURE R2(17) **|**COPY OF THE JUDGMENT AND DECREE IN O.S.NO.**| ||**798/2007 DTD.30.9.2009.**|