Case BriefsHigh Courts

Delhi High Court: While stating that, Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

It is not easy to live with a partner who has mental health issues, and such ailments come with their own challenges for the person facing the problem, and even more so for the spouse. There needs to be an understanding of the problems in a marriage, and communication between the partners– especially when one of the two partners in a marriage is facing challenges of their own.

 Instant appeal was filed under Section 28 of the Hindu Marriage Act, 1995 read with Section 19 of the Family Courts Act, 1984 on behalf of the appellant (husband) against the impugned judgment and order of the Family Court wherein the petition under Section 12 of the Hindu Marriage Act filed by the appellant was dismissed.

Factual Matrix

As per the appellant, the marriage between the appellant and the respondent was the outcome of a calculated fraud that was perpetrated by the respondent and her family members as they chose not to disclose a vital and crucial fact regarding the respondent’s mental health.

Further, the appellant submitted that the respondent was before the marriage and during the days that she stayed with the appellant was suffering from Acute Schizophrenia.

Appellant took her to several doctors but there was no improvement in her mental health condition. The appellant thereafter questioned the respondent’s parents and narrated the mental condition of the respondent.

Later, the father of the respondent took the respondent with him to her parental home (after 9 weeks of marriage) and since then the respondent was living with her parents in their house. The Appellant also averred that the marriage between the appellant and the respondent was not consummated.

On the other hand the respondent averred that the appellant, his family members, friends and relatives had met the respondent prior to marriage many a times, and there were numerous telephonic calls. Therefore, there was no question of respondent suffering from any mental ailment, much less, Schizophrenia either prior to the marriage or during the subsistence of the marriage.

Respondent had also filed a petition under Section 9 of the Hindu Marriage Act seeking Restitution of Conjugal Rights against the appellant.

Analysis, Law and Decision

High Court expressed that,

Judges are not medical professional or experts, and acquire limited knowledge based on the arguments of the parties, and the medical literature produced before them; the testimonies of expert witnesses produced in Court, and the submissions advanced before the Court. The Courts, to be able to decide such issues, needs expert opinion from credible persons in the field.

Further, the Court stated that the outright refusal of the respondent to undergo any medical examination, prevents the Court from arriving at the truth.

It has been held by the Supreme Court in Kollam Chandra Sekhar v, Kollam Padma Latha, (2014) 1 SCC 225, by relying on the testimony of a doctor that Schizophrenia “is a treatable, manageable disease, which can be put on a par with hypertension and diabetes.”

In Sharda v. Dharampal, (2003) 4 SCC 493, the Court observed that “…..but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified Psychiatrist.”

Hence, in such circumstances determination of truth was an important step for the Court to enable the making of a fair decision.

The Court elaborated expressing that treatment of any mental ailment required acceptance of the same, not only by the family members but, most importantly, by the person suffering therefrom.

Pertinently, the respondent herself admitted that even in her college days she used to have headache and the said headaches were of such severity, that they interfered with her education, as a result of which, the respondent could not complete her college.

In view of the above Bench added that,

A combined reading of the evidence as well as the admission of the respondent, even though, may not conclusively prove that the respondent was suffering from Schizophrenia/Hebephrenia- F-20 prior to her marriage, at the time of her marriage, and; subsequent to her marriage, but definitely raises a serious doubt about the mental health of the respondent, and points to the possibility of the appellant’s allegations in regard being true.

The Supreme Court decision of Sharda v. Dharampal, (2003) 4 SCC 493, was a clincher in regard to the present matter.

In Court’s view, the Family Court erred in rejecting the appellant’s application and further the approach of the Family Court – that the appellant had to fend for himself, and he could not seek a direction from the Court for medical examination of the respondent was erroneous.

Adding to the above, Bench stated that the evidence with regard to the respondent’s medical condition – which related to the mental health, could possibly not have been garnered by the appellant without co-operation of the respondent. Only upon medical examination of the respondent, it could be established, with definiteness whether, or not, she was suffering from Schizophrenia, even though, there were pointers in that direction.

The fact that she sought Restitution of Conjugal Rights itself shows that so far as she was concerned, she had no serious complaints with the appellant, or the relationship.

Hence, High Court opined that the Family Court was duty-bound to direct the medical examination of the respondent and appellant could not have been left to gather evidence of the respondent’s mental condition on his own.

The above stated led to an irrefutable assumption that all was not well with the respondent and she had been suffering from some disorder which she did not want to come out.

Concluding the matter, High Court held that examination by a medical specialist(s), if undertaken, would have been unfavourable to the respondent.

The refusal by the respondent to undergo medical examination by the Medical Board of experts leads to the inference that she was not prepared to face the Medical Board as that could have exposed the condition of her mental well being, and would have established the allegation made by the appellant that she was suffering from Schizophrenia. Why else, such a spouse–who claims to be not suffering from any mental ailment who has preferred a petition to seek restitution of conjugal rights, and expresses her desire to live with the appellant husband, not undergo such medical examination?

 “….The outright refusal by learned counsel of the Respondent to subject the Respondent to such medical examination, leaves the situation at a stalemate and prevents us from arriving at the definite truth.” 

In the present matter, another point to be noted was that the appellant had significantly discharged the onus by leading cogent evidence, and raised a preponderance of probability, that the Respondent was suffering from Schizophrenia.

Therefore, the respondent was suffering from Schizophrenia.

Section 12 of the Hindu Marriage Act deals with voidable marriages. A Hindu marriage shall be voidable and may be annulled by a decree of nullity, inter alia, on the ground that the marriage is in contravention of the condition specified in Clause (ii) of Section 5.

The Bench stated that, the failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant – as alleged by him, constituted a fraud perpetrated upon the appellant.

High Court annulled the marriage between the appellant and respondent on the ground contained in Section 12(1)(b) of the Hindu Marriage Act.

“…learned counsel for the respondent is the father of the respondent, and it appears that his objectivity in dealing with the matter has been overshadowed by his love for his daughter, i.e. the respondent, which is only natural and to be expected. However, in the process, unfortunately, the life of the appellant has been ruined and he has remained stuck in this relationship for 16 years without any resolution. In the most important years of his life, when the appellant would have, otherwise, enjoyed marital and conjugal bliss and satisfaction, he has had to suffer due to the obstinacy displayed by not only the respondent, but even her father, who appears to have been calling the shots in relation to the matrimonial dispute raised by the appellant.

In view of the above circumstances, Court granted token costs to the appellant of Rs 10,000. [Sandeep Aggarwal v. Priyanka Aggarwal, 2021 SCC OnLine Del 5521, decided on 24-12-2021]


Advocates before the Court:

For the Petitioner: Asutosh Lohia, Advocate

For the Respondent: Mohan Lal, Advocate

Case BriefsSupreme Court

Supreme Court: The vacation bench of Vineet Saran and BR Gavai, JJ has directed that YSRC MP K. Raghurama Krishnam Raju be taken to the Army Hospital Secunderabad for medical examination after it was brought to its notice that he has undergone heart bye-pass surgery very recently and that there were some injuries on his legs.

The Andhra Pradesh High Court, had, on 15.05.2021, rejected the bail of Kanumuri Raghurama Krishnam Raju who was arrested for allegedly insulting the government and those in government posts. His counsel Mukul Rohatgi, however, told the Court that Raghurama Krishnam Raju is the sitting Member of Parliament and an FIR has been filed against him because of political rivalry as though he was elected as an M.P. of YSRC but he criticized the action of said party and hence FIR has been filed because of political vendetta.

The Court, however, did not go into the merits of the aforesaid allegations and limited itself with the medical condition of the petitioner regarding which there has been remarks by the Magistrate in his order dated 15.05.2021 when he was produced before the Magistrate for remand.

The Magistrate has directed to refer Raghurama Krishnam Raju for medical examination to the “Superintendent of Government Hospital General Hospital, Guntur and Ramesh Hospital, Guntur to get examine the accused person in the presence of his security of Y category”.

The Magistrate had also noted the contention that the police had used 3rd degree methods against Raghurama Krishnam Raju, a heart patient, during his custody and he was unable to walk .

Thereafter, on the same day, the High Court directed that the medical examination be conducted by the medical board headed by the Superintendent of Government General Hospital, Guntur with other government doctors as members of the Board.

After the medical report was placed before the Supreme Court, Senior Advocate Dushyant Dave, appearing for the State, submitted that the State Government would have no objection if Raghurama Krishnam Raju is again medically examined by an independent Central Government Hospital in the presence of a Judicial Officer.

The Court, hence, passed the following directions:

(1) Raghurama Krishnam Raju shall forthwith be taken to the Army Hospital Secunderabad for medical examination. The Y category security, provided under orders of the Delhi High Court, shall escort Kanumuri Raghurama Krishnam Raju only till the Army Hospital and need not be present at the time of medical examination.

(2) The medical examination of Raghurama Krishnam Raju shall be conducted by the medical board of three doctors of the hospital to be constituted by the head of the Army Hospital, Secunderabad, Telangana.

(3) Raghurama Krishnam Raju be medically examined in the presence of a Judicial Officer, who may be nominated by the Chief Justice of the Telangana High Court.

(4) The proceedings of medical examination of Raghurama Krishnam Raju shall be videographed and be submitted to the Registrar General of the Telangana High Court in a sealed cover for being transmitted to this Court.

(5) Raghurama Krishnam Raju shall be admitted in the Army Hospital and kept there for medical care until further orders, which shall be treated as his judicial custody. The expenses, if any, for hospitalization in the Army Hospital shall be born by Raghurama Krishnam Raju.

[Kanumuri Raghurama Krishnam Raju v. State of Andhra Pradesh, 2021 SCC OnLine SC 395, order dated 17.05.2021]


For Petitioner(s): Senior Advocates Mukul Rohatgi, B. Adinarayan Rao, Byrapaneni Suyodhan, Advocate Abhijit Basu, AOR Tatini Basu

For Respondent(s): Senior Advocates Dushyant Dave, V. Giri, AOR Mahfooz A. Nazki, Advocates Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, Shrey Sharma, K.V. Girish Chowdary

Hot Off The PressNews

The National Human Rights Commission, NHRC, India, in order to ensure effective prosecution leading to conviction in cases of sexual assault on women, has prepared a ‘Standard Operating Procedure (SOP) on Collection & Processing of scientific/forensic evidences.’ The SOP, prepared in consultation with medical experts, has been sent to the States/UTs for issuing instructions to all the officers concerned for implementation.

The SOP has been divided into seven sections of key operating procedures. These are: victim care, promptness and examination, collection of samples, collection of blood and urine samples, genital and anal evidence, handing over samples to FSL and general. It can be accessed through the link: https://nhrc.nic.in/acts-and-rules/standard-operating-procedure-sop-collection-processing-scientificforensic-evidences

The Commission has come out with this SOP after it observed that in many cases of alleged rape and sexual assault, there is a substantial delay in medical examination, collection & processing of scientific/forensic evidences of the victim of sexual assault. The exhibits are forwarded to the Forensic Science Laboratory, FSL after much delay and by that time, the samples deteriorate/autolyse and become unsuitable for examination. This delay adversely affects the investigation for effective prosecution leading to a conviction.

The NHRC has expressed the hope that this Standard Operating Procedure if implemented in letter & spirit by the concerned authorities, will definitely help improve the system of medicolegal investigation in cases of sexual assault on women in the country.


National Human Rights Commission

[Press Release dt. 16-12-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Narayan Singh Dhanik, J., allowed a Criminal Jail Appeal which was filed from the jail against the judgment whereby the appellant had been convicted for the offences under Section 376/511 Penal Code, 1860 and Section 6 of the POCSO Act and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs 25,000 for the offence under Section 6 of the POCSO Act.

The complainant had filed an FIR against the appellant alleging that he had attempted to commit rape on the two and half year’s old daughter of the complainant and had committed sexual assault on her. He further alleged that when he went looking for his daughter along with a companion he found the appellant while he was indulged in committing the alleged offence and took him to the police station. On conclusion of the trial, appellant was convicted and sentenced. Thus, the instant appeal was filed by the Amicus Curiae, Raman Kumar Sah on behalf of the appellant submitting that the prosecution had failed to prove the case against the appellant. He further contended that the victim had not identified the appellant nor the victim in her testimony had named the appellant and that the facts elicited during the cross-examination of the complainant and the companion along with him were totally contrary to the prosecution story. It was further contended that the mother of the victim did not support the prosecution story and was declared hostile. Per contra, the AGA for the State, Manisha Rana Singh submitted that prosecution had produced sufficient and credible evidence and the trial court had rightly convicted and sentenced the appellant.

The Court while allowing the appeal set aside the judgment and order of the Trial Court. The Court assessed the medical examination report of the victim which disclosed that the urethral meatus & vestibule, labia major and labia minor of the victim were found normal and no tear or swelling in the private parts was found and Hymen perineum of the victim was also found intact but the doctor had further stated that a little redness was present in the outer surface of the hymen of the victim and the presence of dried blood stains was also detected on her private parts and these conditions led to opine her that the attempt of sexual intercourse with the victim was made. It accepted all the contentions given by the Amicus Curiae and opined that the opinion of the doctor alone was not enough to connect the accused-appellant with the alleged crime in view of the material on record and in the absence of any credible evidence. The Court while quashing the conviction and sentence stated that,

            “In criminal cases, conviction cannot be based upon morality and there must be admissible and credible evidence to base conviction and moreover it is well-settled canon of criminal jurisprudence that ‘fouler the crime higher the proof’ and mandate of law is that the prosecution has to prove the charges beyond all reasonable doubt. A few bits here and a few bits thereon which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question.”[Akash Kumar v. State of Uttarakhand, 2020 SCC OnLine Utt 562, decided on 28-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of N.V. Anjaria and Ashok Kumar C. Joshi, JJ. addressed a petition wherein Writ of Habeas Corpus was sought in order to produce the daughter of the petitioner.

Matter:

Petitioner’s minor daughter was taken by respondent 4 when she was doing some labour work at a factory. Respondent 4 was also engaged in working at the same factory. Petitioner had lodged an FIR for offenses punishable under Sections 363 and 366 of Penal Code, 1860 as well as Section 18 of Protection of Children from Sexual Offenses Act, 2012., but no satisfactory reply came from the police.

In view of the above, petitioner approached the High Court through the present petition.

Further on issuance of order by this court, respondent-3 /Police was asked to take steps to trace the corpus. Later the proceedings kept adjourning due to the COVID-19 Outbreak and consequential suspension of regular court working.

In the meantime, Police succeed in tracing the minor girl with respondent 4. Girl and Respondent 4 were found to be in Panvel Talk of Ahmednagar District in the State of Maharashtra. On 18-04-2020 corpus was brought back to Gujarat. It was found that respondent 4 had taken the girl to various different places during the period.

As the Corpus was in police custody, request was made by the Additional Public Prosecutor to get the matter listed so that the girl could be produced before the Court. Thus the matter after being listed by Registry came up before the Court.

Permission was granted for the corpus to be produce through video-conferencing as, in the present circumstances it was not possible.

According to the Police Report it was noted that the girl was made to go through medical examination and the report for the same submitted to the Court. Respondent 4 had already been booked pursuant to the FIR and events thereafter.

According to the statement recorded by police, it was stated by the Corpus that she was willing to go her parent’s house.

Bench wanted to make sure of the fact that the girl was saying the above out of her own will and thus she was produced before the Court wherein the same question of her willingness was asked and Corpus stated that she was willing to go. Parents of the Corpus were also asked about their willingness to take their daughter to which their response was in positive.

Court directed the parents of the Corpus to take proper care their minor daughter, in view of the stated corpus was permitted to go with her parents. Police authorities were also directed to ensure safe passage of the corpus and her parents.

To ensure the well being of the Corpus, authorities concerned were erected to depute a Social Welfare Officer from the District and the said officer shall visit the house of corpus and report before ether competent authority after one month.

Petition disposed in the above terms. [Atubhai Nanjibhai Baraiya v. State of Gujarat, 2020 SCC OnLine Guj 506 , decided on 21-04-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra, J. while allowing a writ petition, quashed the order of removal from service passed against the petitioner.

The petitioner (since deceased) was posted as a security guard at the bungalow of one of the Ministers of the Government of Chhattisgarh. On the relevant date, he was found to have consumed liquor and attend the duties in that condition, creating nuisance/ruckus. The Panchnama was prepared in the presence of five policemen and upon finding that the petitioner was not in a position to attend the duties, he was sent back in a Government vehicle to the security company’s headquarter. The petitioner was chargesheeted. The Enquiry Officer found all charges proved against the petitioner and punishment of removal from service was imposed upon him.

Admittedly, the petitioner was not sent for medical examination. Attending duties after having consumed liquor had been proved against the petitioner, not on the basis of any chemical or other expert opinion but only on the basis of oral testimony of the fellow constables.

The important issue falling for consideration before the High Court was whether a delinquent employee can be subjected to a major penalty of removal from service on the charge of attending duties in a drunken condition, when, admittedly, he was not sent for medical examination to prove the consumption of alcohol.

Relying on Bachubhai Hassanalli Karyani v. State of Maharashtra, (1971) 3 SCC 930 and Munna Lal v. Union of India, (2010) 15 SCC 399, the High Court allowed the instant writ petition. It was held: “Inebriation of the petitioner was sought to be proved on the basis of Panchnama and oral evidence, and not by requiring the petitioner to undergo any medical examination. Such procedure for proving the fact of inebriation while on duty would not be a prudent manner of proving the charge.”

However, the petitioner died during the pendency of the petition. Therefore, consequent upon quashing of the order of removal from service, the entire benefits including arrears of salary till the date of the petitioner’s death and thereafter, the entire pensionary benefits were directed to be paid to his legal heirs. [Kamleshwar Prasad Trivedi v. State of Chhattisgarh, 2019 SCC OnLine Chh 111, decided on 17-10-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of Bharati H. Dangre, J. allowed the termination of a pregnancy on grounds of it being a risky one as ‘multiple cardiac complications’ in the baby were expected.

Petitioner 1 was subjected to a medical examination and according to the opinion of the medical experts, the pregnancy was asked to be terminated since it posed risk and if the baby was given birth, it would have required multiple surgeries with high morbidity and mortality rate.

Further, the matter was directed to be placed before the Court so that the intended parents apprised of the report and would have accorded their consent. The intending father made a statement that he had gone through the report and noting the report and opinion of the doctors he gave his consent to the termination of pregnancy.

Thus, the High Court on noting the complications as stated by the doctors, directed for the termination of pregnancy on completing necessary formalities. [Kiran Kailas Gavhande v. Union of India, 2018 SCC OnLine Bom 7463, dated 28-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J. dismissed a revision petition filed against the judgment of the trial court whereby it had discharged the accused of offences under Sections 75 and 79 of the Juvenile Justice Act, 2015 and directed that she would face trial under Section 323 IPC.

The allegation against the respondent was that she had employed and maltreated the victim. Since there were no documents available of proof of age of the victim, it was ascertained through medical examination. The medical examination board opined the age of the victim to be between 18 to 20 years. The trial court considering the age determined as 18 to 20 years, opined that the victim was not a child as defined under the JJ Act and as such Sections 75 and 79 would not be attracted. Aggrieved thereby, the State preferred the instant appeal.

The High Court perused the record and was of the view that there was no infirmity in the view taken by the trial court. Keeping in view the fact benefit of doubt has to go the accused, the age would have been taken to be the higher of the range as determined by the medical examination while further keeping in view the margin of error 1 to 2 years. In Court’s opinion, the victim was not a minor when the alleged offence was stated to have happened. In such view of the matter, the judgment impugned was upheld and the appeal was dismissed. [State v. Rama Dhall,  2018 SCC OnLine Del 12540, decided on 22-11-2018]

Case BriefsSupreme Court

Supreme Court: Reacting upon the judicial orders passed by Justice C.S. Karnan against the Chief Justice of India and 7 Supreme Court jusges, the 7-Judge Bench of Jagdish Singh Khehar, CJ and six senior most Judges of the Supreme Court, Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, PC Ghose and Kurian Joseph, JJ, said that the tenor of the press briefings, as also, the purported judicial orders passed by Justice C.S. Karnan, prima facie suggest, that he may not be in a fit medical condition, to defend himself, in the present proceedings and hence he should be medically examined, before proceeding further.

The Court directed the Director Health Services, Government of West Bengal, to constitute a Board of Doctors from Pavlov Government Hospital, Kolkata, to examine Justice C.S. Karnan, and  conduct the examination on 4.5.2017.  Listing the matter on 09.05.2017, the Court directed the Medical Board to submit the report on or before 8.5.2017.

The Court also refrained all Courts, Tribunals, Commissions or Authorities, from taking cognizance of any orders passed by Justice C.S. Karnan, after the initiation of the proceeding on 8.2.2017.

Directing Justice C.S. Karnan to furnish his response to the notice issued to him on 8.2.2017, on or before 8.5.2017 and if he fails to do so it shall be presumed, that he has nothing to say in the matter.

Justice Karnan, who is a sitting judge of Calcutta High Court, had recently barred the members of the Bench in the present contempt proceedings, along with R. Banumathi, J. from travelling outside India and had directed them to appear before him. [IN RE: JUSTICE C.S. KARNAN, 2017 SCC OnLine SC 514, order dated 01.05.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the appellants were involved in at least 24 cases of various offences allegedly committed between 1988 and 1995 and one was alleged to have committed murder and robbery in the year 1988, the Court refused to rely upon the opinion of the medical board in determining the age of the appellants, in the absence of the other cogent evidence, so as to give benefit under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. The Court said that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences.

As per the medical report submitted in the year 2016, the appellants would have been born in the year 1979. The Court said that, going by the report, one accused would have been 9 years old at the time of commission of his first offence in the year 1988 and the other would have been 14 at the time of commission of his first offence in the year 1993. The bench of Dr. A.K. Sikri and R. Banumathi, JJ added that had it been so, when the appellants were produced in those cases the appellants would have been considered as ‘children’ by the very appearance. They would have been dealt with accordingly by the concerned juvenile court and the matters would not have been kept pending till this date. Hence, the opinion of the Medical Board determining the age of the appellants as 35-40 years in May, 2016 cannot be relied upon.

Stating that medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances, the Court said that a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. The Court hence, rejected the plea of juvenility of the appellants in the absence of other cogent evidence. [Mukarrab v. State of U.P., 2016 SCC OnLine SC 1413, decided 30.11.2016]