Sebastian v. Alphonsa and State of Kerala

O.P.(Crl) No.301/2016 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1940** **OP(Crl.).No.301 OF 2016(Q)** **AGAINST THE ORDER/JUDGMENT IN MC 163/2014 DATED 16-04-2016 OF FAMILY COURT,TRIVANDRUM** ## **PETITIONER/PETITIONER IN CMP:** **SEBASTIAN AGED 52 YEARS, S/O LATE SWAMINADHAN @ JOSEPH AMBALATHUMOOLA PURAYIDOM, CHACHOATHU, ADIMALATHURA, TRIVANDURM, REPRESENTED BY HIS NEXT FRIEND, WILFRED CULAS AGED 62 YEARS, S/O LATE ROCKIN CULAS, RESIDING AT TC 29/298 MRA 61, THENGAPPURA LANE, KAITHAMUKKU, TRIVANDURM PIN-695024** **BY ADVS. SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN** ## **RESPONDENT/RESPONDENT IN CMP & STATE:** **1 ALPHONSA AGED 46 YEARS, D/O ROSE MARY, ROSY BHAVAN,CATHEDRAL LANE, NEYYATTINKARA P.O.TRIVANDURM-695121** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **R1 BY ADV. SRI.R.ANILKUMAR R1 BY ADV. SRI.G.RADHAKRISHNAN** **PUBLIC PROSECUTOR SRI.E.C.BINEESH** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07-03-2019, THE COURT ON 06-03-2020 DELIVERED THE FOLLOWING:** O.P.(Crl) No.301/2016 2 ## **JUDGMENT** ## **Dated this the 6[th] day of March 2019** This Original Petition arises from the order in CMP No.424/2015 in M.C No.163/2014 of the Family Court, Thiruvananthapuram. (Parties will hereinafter be referred to as “the petitioner” and “the first respondent” in accordance with their status before this Court). 2. The first respondent was married to the petitioner in 2005. Matrimonial disputes arose between the spouses. First respondent filed MC No.80/2007 before the Family Court,Trivandrum invoking section 125 Cr.P.C.,seeking maintenance. Petitioner remained ex parte. The Family Court allowed the application and granted a monthly maintenance of Rs.1000/-. In execution, petitioner was arrested and was ordered to be detained for a period of one year. It is seen from the records that the relatives intervened, paid the entire amount and got the petitioner released from jail. Subsequently, the first respondent filed MC No.163/2014 invoking section 127 Cr.P.C., for enhancement of the maintenance amount. It was alleged that the petitioner was working as mason and earning Rs.750/- per day. Petitioner appeared and filed a detailed objection claiming O.P.(Crl) No.301/2016 3 that the first respondent was gainfully employed and that she was capable of maintaining herself. It was claimed that the petitioner was ailing and was unable to speak properly. It was further claimed that he was unable to maintain the first respondent. 3. Pending consideration of MC, learned counsel for the petitioner filed CMP No.424/2015 along with an affidavit sworn by the counsel for the petitioner, invoking section 10(3) of the Family Court Act. It was stated in the affidavit that the petitioner was introduced to the counsel by his brother-in-law. Petitioner was accompanied by his sister and the brother-in-law. Objection was preferred in the MC on the basis of the facts disclosed by the person who had accompanied the petitioner . When the case was posted for evidence and while talking to the petitioner and watching his activities, the counsel for the petitioner is stated to have understood that the petitioner was not a mentally fit person. Hence, the learned counsel requested the court to adjudge on the question of the mental capacity of the petitioner. He requested the court to pass an order directing the Medical Board, Trivandrum to examine the petitioner and to evaluate his mental capacity. 4. The above petition was dismissed by Ext.P4 order holding O.P.(Crl) No.301/2016 4 that the petitioner did not place any material before the court to prima facie establish that he was unable to prosecute the case on account of his mental infirmity or illness. Challenging the above order, this original petition is filed by the petitioner represented by his next friend, who is his maternal uncle. 5. Heard the learned counsel for the petitioner, learned counsel for the first respondent and the learned Public Prosecutor. 6. The crucial question that arises in this case is the procedure to be adopted when a claim of mental illness is made by the opposite party to an MC proceeding or similar proceedings. Necessarily the answer to this question lies on the question whether it is a proceeding of civil nature or criminal nature, so as to decide substantive law applicable in the given situation. 7. Section 10(2) of the Family Court Act stipulates that subject to other provisions of the Family Court Act and Rules, provisions of the Criminal Procedure Code 1973 or Rules made thereunder shall apply to the proceedings under Chapter IX of Cr.P.C. Since Section 125 Cr.P.C.falls within Chapter IX of Cr.P.C.,it is clear that in relation to the procedure under section 125 Cr.P.C.,the Code of Criminal Procedure is the law applicable O.P.(Crl) No.301/2016 5 to the procedure. 8. A Full Bench of this Court in **Balan Nair v. Valsalama[1986 KLT 1378(FB]** had occasion to consider the nature of the proceedings under section 125 Cr.P.C. Referring to the legal principles involved, the Full Bench held that the provisions relating to maintenance occur in the Code of Criminal Procedure and not in the Code of Civil Procedure. Nevertheless, the proceedings are, and the relief given is essentially of civil nature. Chapter IX prescribes a summary procedure for compelling a person to maintain his wife or children or parents. Findings of the Magistrate are not final or conclusive in the sense that they may in appropriate cases be open to scrutiny by a civil court. The case does not deal with an offence. The person against whom the claim was made was not an offender or an accused. The order passed against him does not spell out a finding that he has committed an offence. There was no punishment imposed on him, though as a mode of recovery, imprisonment was provided for. He was not charged for the commission of a criminal offence. The object was to prevent vagrancy and ameliorate distress. It was held that the provisions have been incorporated in the Code of Criminal Procedure only with a view to expedite the proceedings as it was thought that O.P.(Crl) No.301/2016 6 the Magistrate could better deal with the matter in a summary manner. Proceedings against him were essentially of a civil nature since the claim against him was essentially of a civil nature. 9. Referring to the procedure of serving summons on the respondents in a proceeding under Section 125 Cr.P.C., the Full Bench proceeded to rely on the observation of the Supreme Court in **Nanda Lal v. Kanhaiya Lal (AIR 1960 SC 882)** that Chapter IX of the Code was a self contained code. Yet, the Chapter did not contain specific provisions indicating the manner in which the person against whom claim for maintenance was made was to be informed about the claim and his right to appear and contest the claim. Full Bench opined that the criminal courts will have to devise its own procedure in this regard. The court held that, to this limited extent, no doubt, the criminal Court could look into the provisions in Part A of Chapter VI dealing with summons. But the criminal Court cannot invoke the provisions regarding warrant of arrest, proclamation and attachment contained in Chapter VI. The Bench continued that when it is indicated that the criminal Courts will be guided by the principles available in other parts of Cr.P.C., the Court do not mean to say that the Magistrate should O.P.(Crl) No.301/2016 7 rigidly follow the provision of statute so referred. Such rigid adherence to those provisions would not be practicable and would be counter-productive in a large number of cases. The above view of the Full Bench indicate the possibility of the Magistrates evolving a just procedure of its own, in consonance with the spirit of the remaining provisions of the Code of Criminal Procedure, while exercising the summary procedure under Chapter IX Cr.P.C. 10. Subsequently, two Full Benchs of this Court in **Satyabhama v. Ramachandran(1997 (2) KLT 503 (FB)** , **Peter v. Sara(2006 KHC 1450)** had held that all family courts act as a criminal courts, while disposing of applications under Chapter IX of Code of Criminal Procedure and hence, the proceedings were criminal in nature. 11. However, the Hon'ble Supreme Court in **Shabana Bano** **v. Imran Khan ( AIR 2010 SC 305)** held that the proceedings under section 125 Cr.P.C. were of a civil nature. The above judgment placed its reliance on the earlier decisions of the Supreme Court in **Iqbal Bano v. State of U.P.and Another[(2007)6 Supreme Court Cases 785 at para 10}** and **Vijay Kumar Prasad v. State of Bihar and Others[(2004) 5** O.P.(Crl) No.301/2016 8 **SCC 196 at para 14]** . The above decisions set at rest the question regarding the nature of proceedings under section 125 Cr.P.C. 12. An identical situation, as that of the case at hand, came up for consideration before a Division Bench of this Court in **Ramakrishnan v. Kali[1987 (2) KLT 938]** . In that case, an application under section 125 Cr.P.C. was filed by a woman represented by her daughter as next friend. No mental infirmity or specific cause was attributed by the daughter for moving the application on behalf of mother. Legality of such an application filed by one person representing the original person claiming maintenance was considered by a Division Bench. The Division Bench referred to Balan Nair's case (supra), wherein it was held that though the provisions relating to the maintenance occur in the criminal procedure and not in the code of civil procedure. nevertheless the proceedings are and the relief given was essentially of a civil nature. Chapter IX prescribes a summary procedure for compelling a person to maintain his wife or children or parents. Findings of the Magistrate are not final or conclusive in the sense that they may in appropriate cases be open to scrutiny by a civil court. The Division Bench proceeded to hold that the proceedings were essentially civil in nature did O.P.(Crl) No.301/2016 9 not mean that the provisions of the Code of Civil Procedure would apply to the proceedings. Learned counsel referred to the provisions of Order XXXII C.P.C.,by which next friend of a minor or person of unsound mind was authorised to file a suit on behalf of the latter. Notwithstanding the fact that proceedings were essentially of a civil nature, the Bench held the view that the proceedings were not governed by Order XXXII C.P.C. It was held that as indicated in Balan Nair's case (supra), the proceedings were summary in nature. They have been so made with a view to achieve expedition, it was held. The court opined that the intention of the legislature was not to make the proceedings governed by various dilatory and technical provisions in the Code of Civil Procedure. 13. Applying the above principle, the Division Bench held that it was open to the person who neglected to move the court by way of an application. It was also open to another person who has sufficient interest in the person neglected to move the court by an application under section 125 Cr.P.C. It was held by the Division Bench in Ramakrishnan's case that the mother herself could be the petitioner and she could have signed the vakalath. Alternatively, the daughter could have signed and filed the application, not in any alleged capacity of next friend, but as a O.P.(Crl) No.301/2016 10 person having sufficient interest in the mother, the destitute. The court stated that it was conscious of the fact that such a liberal interpretation of the locus standi in Section 125 of the Code was susceptible to misuse and abuse. Magistrates will have to be on their guard to ensure that judicial process was not abused by vengeful or recalcitrant persons or busybodies. It was held. Widening the scope of locus standi, the Division Bench held that application filed by the daughter for and on behalf of the mother could be held as valid. However, it was clear that the court did not answer the question whether the daughter could represent the mother. 14. The learned Single Judge of this Court in **Sukumaran v.Rajamma [1992 (2) KLT SN 13 (C.No.18)]** was specifically called upon to answer the question of identical nature as that arises in the present case. It related to the applicability of section 328(3) Cr.P.C.and the related provisions of the Cr.P.C. in a proceedings under Chapter IX of Cr.P.C. In that case, which arose from a proceeding under section 125 Cr.P.C., husband pleaded insanity. It was contended that, the court below, in the light of the above contention, should have recorded a finding under section 328(3) Cr.P.C. This contention was negatived by a single Judge of this Court holding that a proceeding under O.P.(Crl) No.301/2016 11 section 125 Cr.P.C was not same as in a criminal case. There was no trial, but only an enquiry, the result of which was not either discharge, acquittal or conviction, as in a criminal case, but an order granting maintenance or refusing it. 15. In **Appichi Goundan v. Kuthujammal (AIR 1925 Madras 440) ,** the question arose whether under the provisions of Code of Old Criminal Procedure 1880, the magistrate could appoint a guardian in the case of a lunatic. It was held that, the Magistrate had no power under the Code to appoint a guardian for a lunatic in a proceeding under Section 488 Cr.P.C. Such proceedings may be quasi civil but they are also criminal and are wholly governed by the provisions of the Cr.P.C.alone. Where in such a case, the counter-petitioner pleaded insanity, it was the Magistrate's duty to hold a judicial enquiry and to put him if necessary under medical observation. If as a result of the enquiry, the court was satisfied that he was sane and capable of understanding the proceedings, then the matter is simple. But, if it was concluded that he was insane and not capable of understanding the proceedings and incapable of understanding questions put to him and giving rational answers, he must postpone further proceedings until he reverts to sanity. 16. However, I cannot agree with the above proposition O.P.(Crl) No.301/2016 12 since by subsequent decisions, proceedings under section 125 Cr.P.C.was held to be in the nature of civil proceedings, though adjudicated by invoking the provisions under Cr.P.C. by a Criminal court. It was held that the provisions under Chapter XV of Cr.P.C.1973 cannot be applied in the case at hand for more reasons than one. In the case at hand, the position of the petitioner cannot be equated with that of an accused. It justifies the reason why in a criminal proceedings, if the accused is found to be insane and unable to defend himself, the proceedings are kept in abeyance till he reverts to sanity. That cannot be applied to the facts of this case. Proceedings under section 125 Cr.P.C. is a summary proceeding and hence, all the relevant provisions under Cr.P.C. cannot apply to it. 17. Legal position that emerges from the discussion of the above case laws is that though proceeding under section 125 Cr.P.C. is essentially a civil proceeding or a quasi civil proceedings, the Code of Civil Procedure has no application. The procedure under section 125 Cr.P.C.is summary procedure governed by Chapter IX Cr.P.C., which has been consistently held to be a self contained provision. It was also held that Chapter XV of Cr.P.C. was not applicable to the facts of the case. 18. In the emerging situation, when an application is filed O.P.(Crl) No.301/2016 13 by the respondent in a proceeding under section 125 Cr.P.C., what should be the procedure adopted by the court? It seems that the answer lies in the Division Bench decision in Ramakrishnan's case(cited supra). In that case, though it was held that provisions under CPC will not apply and though the Chapter IX is a self contained Code, it was held that the court was bound to evolve a procedure of its own, in consonance of the provisions and spirit of the Cr.P.C. Hence, when a person against whom an application for maintenance is made is found to be not mentally fit, the court below will be justified in permitting another person who is genuinely interested in the welfare of the above person to represent the person against whom such a claim is made. In that context, the court should be prima facie satisfied that the person against whom claim is made is not capable of defending himself. Further, it should be satisfied that the person claiming to represent such person has no interest adverse to the interest of such person and his interest was only to ensure welfare of such person. In the case at hand, there was no such application filed by an interested person. Further there was no material placed before the court below to substantiate the contention that person against whom claim was made was incompetent to represent himself. Hence, the court O.P.(Crl) No.301/2016 14 below cannot be found fault with in passing the impugned order. 19. However, I feel that the court below, in the interest of justice, should have granted some opportunity to the petitioner to file appropriate application by the person interested in continuing the proceedings to establish before the court that the person against whom claim was made was unable to represent himself in the proceedings due to his mental illness or otherwise and also to establish that the person claiming to represent was genuinely interested in the welfare of such person and had no interest adverse to the interest of such person. 20. For the above purpose, the court below shall conduct a prima facie enquiry, on the materials to be placed before it and to decide whether such person should be directed to appear before the Medical Board for examination. The court below shall take such decision within one month from the date of appearance ordered by this court. The original petition is allowed. Both the sides shall appear before the court below on 1-4-2020 without any further notice. ## **Sd/-** **SUNIL THOMAS** dpk **JUDGE** O.P.(Crl) No.301/2016 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**P1**|**TRUE COPY OF THE ORDER DATED 17.12.2007 IN**| |---|---| ||**M.C.NO.80/2007 OF FAMILY COURT, TRIVANDRUM.**| |**P2**|**TRUE COPY OF THE M.C.NO.163/2014 FILED BY**| ||**THE 1ST RESPONDENT.**| |**P3**|**TRUE COPY OF THE OBJECTION FILED IN**| ||**M.C.NO.163/2014.**| |**P4**|**TRUE COPY OF THE CMP NO.424/15 IN**| ||**M.C.163/14`**| |**P5**|**TRUE COPY OF THE OBJECTION FILED BY THE 1ST**| ||**RESPONDENT.**| |**P6**|**TRUE COPY OF THE ORDER DATED 16.4.2016 IN**| ||**CMP 424/15 IN MC.163/14 OF FAMILY COURT,**| ||**TRIVANDRUM.**|