Kerala High Court
Case BriefsHigh Courts


Kerala High Court: In a petition filed by a 21-year-old girl, seeking medical termination of her pregnancy, V.G. Arun, J. observed that the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status’ and she cannot be denied permission for terminating her pregnancy, on the premise that she is not legally divorced, and her marital status has therefore not changed. Further, the Medical Termination of Pregnancy (‘MTP’) Act, 1971 does not contain any provision requiring the woman to obtain her husband’s permission for terminating the pregnancy, as the woman bears the stress and strain of the pregnancy and the delivery.

In this case, the petitioner against her family wishes married the respondent. Thereafter, the respondent and his mother started ill- treating her. In the meanwhile, she became pregnant, however, the respondent raised suspicion regarding the paternity of the unborn baby and on that excuse, refused to provide any sort of support, either financial or emotional, to the petitioner. The psychological impact of the cruelty, the ignominy of having to go back to her parents, and the lack of emotional and psychological support made the stress and strain of the pregnancy unbearable. Therefore, the petitioner decided to terminate her pregnancy and she approached the Family Planning Clinic, however, the Doctors at the clinic refused to terminate the pregnancy as there were no legal documents to prove separation/divorce of the petitioner with the respondent. Therefore, she filed a complaint against the respondent and his mother for the offence punishable under Section 498-A r/w 34 of the Penal Code, 1860. Thereafter, she again approached the clinic, but the doctors once again refused to relent to her request, as the pregnancy was of 21 weeks 2 days gestation and there was no indication of fetal anomaly or maternal illness.

The Court observed that the MTP Act, 1971 was introduced with intention to liberalise certain existing provisions relating to termination of pregnancy as health measures, like:

  • Danger to the life or risk to the physical or mental health of the woman.

  • Humanitarian grounds – such as when pregnancy arises from sex crime or rape or intercourse with lunatic woman etc.

  • Eugenic grounds – Substantial risk that the child if born would suffer from deformities and diseases.

Further, as per Section 3(2)(a) of the MTP Act, 1971 pregnancy can be permitted to be terminated by a registered medical practitioner and as per Section 3(2) (b), if the length of pregnancy exceeds 20 weeks, but does not exceed 24 weeks, then Medical termination of pregnancycan be permitted based on the opinion of two registered medical practitioners that, continuance of pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical and mental health or that, if the child were born, it would suffer serious physical or mental abnormality.

The Court observed that in the petitioner’s case, the Medical Board has opined that medical termination of pregnancy may be done since continuance of the pregnancy will have a negative impact on her mental health, further, the petitioner belongs to the weaker section of society and does not have the financial capacity to bring up the child on her own. Even, her husband had refused to accompany her to the hospital from the initial stages of her pregnancy, thus, she is denied emotional support as well.

Thus, the question is whether medical termination of pregnancy can be allowed, even if the petitioner does not fall within the category of women eligible for termination of pregnancy as per the rules.

The Court examined Rule 3B (women eligible for termination of pregnancy up to twenty-four weeks), and observed that women, whose marital status changed during the ongoing pregnancy (widowhood or divorce), are also included. It was also observed that it is to be considered that, despite the drastic changes in petitioner’s matrimonial life, whether she could be denied permission for terminating her pregnancy, on the premise that she is not legally divorced, and her marital status has therefore not changed.

The Court referred to the ruling in Suchita Srivastava v. Chandigarh Admn, (2009) 9 SCC 1, wherein it was held that “a woman’s right to make reproductive choice is also a dimension of her personal liberty, as understood under Article 21 of the Constitution of India and there can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating”. Further, it cited the decision in X v. Health & Family Welfare Department, 2022 SCC OnLine SC 905, wherein it was held that “Clause (c) of Rule 3B speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. The expression “change of marital status” should be given a purposive rather than a restrictive interpretation and need not be construed to be exhaustive of the category which precedes it”. Thus, it was observed that the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status’ and the word ‘divorce’ cannot in any manner qualify or restrict that right.

The Court while considering the petitioner’s right to privacy, placed reliance on K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, wherein, right to privacy was held to be a fundamental right and an essential aspect of dignity.

Moreover, the Court observed that MTP Act does not contain any provision requiring the woman to obtain her husband’s permission for terminating the pregnancy, as the woman bears the stress and strain of the pregnancy and the delivery. Thus, the Court permitted the petitioner to terminate her pregnancy and directed the Hospital’s Superintendent to take immediate measures for constituting a medical team for conducting the procedure. Further, it ordered that if the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment, and if the petitioner is not willing to assume the responsibility of the baby, the State must take up the responsibility for the time being and offer requisite medical support and facilities.

[X v. Union of India, Writ Petition (C) NO. 29402 of 2022(A), decided on 26.09.2022]

Advocates who appeared in this case:

For Petitioner: Advocate Liji.J.Vadakedom

Advocate Rexy Elizabeth Thomas

Advocate Tom E. Jacob

For Respondent: Deputy Solicitor General of India

Advocate Aneesh. K.R.,

Advocate Rooprekha D.Kamath,

Advocate Saurav B.

Advocate Benita Alphonsa,

Case BriefsSupreme Court

Supreme Court: In a suo motu case initiated to address the question as to whether the provision of pre-sentence hearing in capital punishment cases is mandatory or discretionary, the 3-judges Bench of Uday Umesh Lalit, CJ., and S. Ravindra Bhat*, Sudhanshu Dhulia, JJ., suggested that the matter be referred to a constitution Bench. Highlighting the apparent flaw of depriving the capital punishment convict of pre-sentence hearing, the Court held,

“In all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecution’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him.”

Question of Law

Due to a difference of opinion and approach amongst various judgments, on the question of whether, after recording conviction for a capital offence, the court is obligated under law to conduct a separate hearing on the issue of the sentence, the Bench had assembled to adjudicate the issue.

Validity of Capital Punishment and Valuable Safeguards

In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the majority upheld the constitutionality of the death sentence, on the condition that it could be imposed in the “rarest of rare” cases. The Court, being conscious of the safeguard of a separate hearing on the question of sentence, articulated it as a valuable right, which ensures to a convict, to urge why in the circumstances of his or her case, the extreme penalty of death ought not to be imposed. The Court noted,

“The present legislative policy discernible from Section 235 (2) read with Section 354 (3) is that in fixing the degree of punishment or making the choice of sentence for various offences the Court should not confine its consideration “principally” or merely to the circumstances connected with a particular crime, but also give due consideration to the circumstances of the criminal.”

Bifurcated Hearing: Inconsistent Precedents

Section 235 of the CrPC, 1973 which deals with judgment of acquittal or conviction, reads as follows: “235.’(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

Hence, Section 235 (2) provides for a bifurcated trial and specifically gives the accused person a right of a pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354 (3) a bearing on the choice of sentence.

Precedents holding Bifurcated Hearing is of mandatory nature

In Santa Singh v. State of Punjab, (1976) 4 SCC 190, the Court had held that a separate stage should be provided after conviction when the court can hear the accused in regard to the factors bearing on sentence and then pass proper sentence on the accused—the nature of the offence, the circumstances of the offence (extenuating or aggravating), the prior criminal record of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. In the aforesaid case, the Court had also noted,

“Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing 8 would have to be harmonized with the requirement of expeditious disposal of proceedings.”

In Mithu v. State of Punjab, (1983) 2 SCC 277, the Court held that it is because the court has an option to impose either of the two alternative sentences, subject to the rule that the normal punishment for murder is life imprisonment, that it is important to hear the accused on the question of sentence. In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, the Court observed,

“To assist the court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality.”

Similarly, other more recent three-judge decisions have also ruled that same day sentencing in capital offences violate the principles of natural justice, and is opposed to Section 235 (2).

Precedents Stating Bifurcated Hearing is merely discretionary

However, some the three-judge Benches have arrived at a different conclusion that same-day sentencing does not necessarily fall foul of Section 235(2) of the CrPC. This contrary line of cases are based on the premise that the court may adjourn for a separate hearing, but the absence of it would not in itself vitiate the sentence. In Dagdu v. State of Maharashtra, (1977) 3 SCC 68, a three-judge bench rejected the interpretation of Santa Singh case (supra) as laying down that failure on the part of the court to hear a convicted accused, on the question of sentence, would necessitate remand to the trial court. Instead, it held that such an omission could be remedied by the higher court by affording a hearing to the accused on the question of sentence, provided the hearing was “real and effective” wherein the accused was permitted to “adduce before the court all the data which he desires to be adduced on the question of sentence”.

Several decisions have since relied on Dagdu (supra), and concluded that the action of the court sentencing an accused on the same day as conviction in itself would not vitiate the sentence. The decision in Dagdu (supra) was in turn, followed by another three-judge bench in Tarlok Singh v. State of Punjab, (1977) 3 SCC 218. Similarly, in Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714, a similar conclusion was arrived at, but on differing reasoning. The Court held,

“While the accused facing the possibility of death sentence was not entitled to an adjournment, nothing barred the court from granting the same.”

Judicial Interpretation of “Sufficient Time”

The Court through its various judgments had held that “sufficient time must be given to the accused on the question of sentence”. The common thread that runs through all these decisions is the express acknowledgment that meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing. However, the Court noted,

“What is conspicuously absent, is consideration and contemplation about the time this may require.”

In Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, where ‘sufficient time’ for compliance with Section 235(2) CrPC was considered; it was concluded that the trial court had “scrupulously carried out its duty in terms of Section 235(2)” since the sentence was awarded 3 days after the conviction, after considering both the aggravating and mitigating circumstances. After hearing the parties on the question of conviction in Manoj v. State of M.P., 2021 SCC OnLine SC 3219, the Court had adjourned the matter for submissions on sentencing, with directions eliciting reports from the probation officer, jail authorities, a trained psychiatrist and psychologist, etc., to assist the accused in presenting mitigating circumstances. Noticing the lack of a uniform framework in this regard, the Court had initiated the present Suo Motu W.P. (Crl.) No. 1/2022 to address the necessity of working out the modalities of psychological evaluation, the stage of adducing evidence in order to highlight mitigating circumstances, and the need to build institutional capacity in this regard.


The Court, after observing that the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, are relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused, opined that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict, on the issue of sentence.

Consequently, the Court held that a reference to a larger bench of five Judges is necessary for this purpose and directed the matter to be placed before the Chief Justice of India for appropriate orders in this regard.

[Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences: In re, 2022 SCC OnLine SC 1246, decided on 19-09-2022]

*Judgment by: Justice S. Ravindra Bhat

*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts


Kerala High Court: V. G. Arun, J., allowed medical termination of 28-week pregnancy of a 14-year-old girl.

The mother of the victim had approached the Court seeking permission to abort the victim's 28 weeks of pregnancy. Noticeably, the victim herein is a minor girl aged 14 years.

By its earlier order, the Court had directed the Superintendent of Medical College Hospital to constitute a Medical Board of competent medical practitioners to examine the victim and file a report before the Court.

Accordingly, the Medical Board, after examining the child, opined,

“Gestational age by Ultrasound is 27 weeks 5 days and correlated with clinical findings. Anguish caused by the continuation of pregnancy can be presumed to cause a grave injury to the mental health of 14-year-old unmarried girl. Hence Medical Board is recommending MTP.”

In the light of the suggestion of the Medical Board recommending medical termination of pregnancy (MTP) as continuation of pregnancy may cause grave injury to the mental health of the girl, the Court issued the following interim directions:

  • The petitioner is permitted to get the victim girl's pregnancy terminated at a Government Hospital.

  • On production of this order, the Superintendent of the hospital shall take immediate measures to constitute a medical team for conducting the procedure.

  • The petitioner shall file an appropriate undertaking, authorising the medical team to conduct the surgery at her risk.

  • If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment available so that it develops into a healthy child;

  • If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, as may be reasonably feasible, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.

[X v. Union of India, W.P.(C) No.26103 of 2022, decided on 16-08-2022]

Advocates who appeared in this case :

M/S. Babu Paul & Murali Manohar, Advocates, For the Petitioner.

*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In a significant ruling regarding better evaluation of possibility for the accused to be reformed, the 3-judge Bench comprising Uday Umesh Lalit, S. Ravindra Bhat* and Bela. M. Trivedi, JJ., framed practical guidelines for the courts to adopt and implement for conviction of offenses that carry the possibility of the death sentence. 

The Court opined that the recent trend to call for a Probation Officer’s Report, is in fact a desperate attempt by the courts at the appellate stage, to obtain information on the accused. However, this too is too little, too late, and only offers a peek into the circumstances of the accused after conviction. Therefore, the Court made it mandatory for trial courts to call for psychiatric and psychological evaluation reports of the accused before awarding capital punishment. The Court observed,  

“The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect application of the Bachan Singhi test.” 

Factual Matrix  

The Court was hearing appeals filed by three death row convicts, Manoj, Rahul, and Neha, convicted under Section 302 of the Penal Code, 1860 (3 counts) by the judgment and orders of the First Additional Sessions Judge, Indore, and further confirmed by the M.P. High Court.   

The appellants were charged for the brutal, and grotesque killing of three generations of women (age group 22, 46, and 76 years) who were caught off-guard and severely physically assaulted, resulting in their death, in their own home. The common intention of the appellants was to rob the deceased, however, on receiving unexpected protest, the appellants had resorted to frenzied knife attacks to subdue the three deceased women.  

Holding that all the circumstances and the link connecting them were sufficiently established by the prosecution and proved beyond a reasonable doubt, the Supreme Court held all three accused guilty of the offenses under Section 397/34, 449/34, and 302/34 IPC. Additionally, Manoj and Rahul’s conviction under Section 25(1-B) (B) of the Arms Act, and Rahul’s conviction under Section 27 of the Arms Act, were upheld. 

Criminal Trial Guidelines  

In Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, in re, (2021) 10 SCC 598, the 3-judge Bench had approved a draft guideline regarding Inadequacies and Deficiencies in criminal trials which states as follows:   


Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.PC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O) in accordance with Sections 207 and 208, CrPC”.  

Hence, the Court held that the prosecution should as a matter of rule comply with the above rule in all criminal trials, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The Court directed that the presiding officers of courts in criminal trials shall ensure compliance with such rules. 

Death Penalty Framework and Principled Sentencing 

In the absence of an individual’s capacity to effectively bring forth mitigating factors, the Court had, in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 placed the burden of eliciting mitigating circumstances on the court, which has to consider them liberally and expansively, whereas the responsibility of providing material to show that the accused is beyond the scope of reform or rehabilitation, thereby unquestionably foreclosing the option of life imprisonment and making it is a fit case for imposition of death penalty, is one which falls squarely on the State.  

Again, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, the court had articulated a two-step process to determine whether a case deserves the death sentence – “firstly, that the case belongs to the ‘rarest of rare’ category, and secondly, that the option of life imprisonment would simply not suffice.”  

Noting that despite over four decades since Bachan Singh’s case there has been little to no policy-driven change, towards formulating a scheme or system that elaborates how mitigating circumstances are to be collected, for the court’s consideration and that scarce information about the accused at the time of sentencing, severely disadvantages the process of considering mitigating circumstances, the Bench opined,  

“Therefore, ‘individualised, principled sentencing’ – based on both the crime and criminal, with consideration of whether reform or rehabilitation is achievable, and consequently whether the option of life imprisonment is unquestionably foreclosed – should be the only factor of ‘commonality’ that must be discernible from decisions relating to capital offences.”  

Practical Guidelines to Collect Mitigating Circumstances  

Opining that there is an urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage, the Court framed following practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation: 

  1. The trial court must elicit information from the accused and the state, both.  
  2. The state, must – for an offence carrying capital punishment – at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused.  
  3. Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows: 

a. Age 

b. Early family background (siblings, protection of parents, history of violence or neglect) 

c. Present family background (surviving family members, whether married, has children, etc.) 

d. Type and level of education 

e. Socio-economic background (including conditions of poverty or deprivation, if any) 

f. Criminal antecedents (details of offence and whether convicted, sentence served, if any) 

g. Income and the kind of employment (whether none, or temporary or permanent etc); 

h. Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc. 

The Court clarified that the aforementioned information should mandatorily be available to the trial court, at the sentencing stage. Further, the Court directed that the accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances and the courts should call for other related details in the form of a report from the relevant jail authorities, particularly information regarding the accused’s jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, etc.   

Further, the Court directed that if the appeal is heard after a long hiatus from the trial court’s conviction or High Court’s confirmation – a fresh report from the jail authorities is recommended, for a more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The Court emphasised,  

“The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.”  


In the backdrop of above, the Court opined that the fact that the accused had to repeatedly stab them, reveals that the said appellants were not familiar with wielding such a weapon, the young age of the accused at the time of the incident (35, 20, 22 respectively) and lack of criminal antecedents (except in the case of Manoj, who was allegedly involved in a case of petty theft) could not be lost sight of.  

Further, the prosecution case was silent on any real motive that may have instigated or moved the three accused to have pre-planned for the commission of murder – other than robbery, itself. Therefore, the Court noted,  

“It is unfortunate to note that both the trial Court, and High Court, failed to provide an effective sentencing hearing to the accused, at the relevant stage, which is a right under Section 235(2) CrPC recognised by this court in several cases.” 

Lastly, considering that the three accused had a record of overall good conduct in prison and display a probability of reform, the Court concluded that the option of life imprisonment was certainly not foreclosed and the imposition of the death sentence was unwarranted in the present case. Hence, the death sentence of all three accused was commuted to life imprisonment for a minimum term of 25 years.  

[Manoj v. State of M.P., 2022 SCC OnLine SC 677, decided on 20-05-2022] 

*Judgment by: Justice S. Ravindra Bhat 

Appearance by:  

For Appellants 1 and 2: Ms. Anjana Prakash, Senior Advocate  

For Appellant 3: Mr. Shri Singh, Advocate  

For the State of M.P.: Ms. Swarupama Chaturvedi, Additional Advocate General  

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: Adopting a humanitarian approach, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., allowed Project 39- A of the National Law University, Delhi, to have access to the appellant, a death row convict to interview him and conduct a psychological analysis in order to bring out mitigating circumstances.  

The appellant had approached the Court against the order of confirmation of the death sentence awarded by the Madhya Pradesh High Court. The Court, while admitting the appeal had stayed the execution of the death sentence of the appellant.  

Referring to the recent decision in Manoj v. State of M.P., 2022 SCC OnLine SC 677, wherein the Court has mandated for the Trial Courts to collect psychiatric and psychological evaluation report of the accused before awarding the death sentence, the Court opined that if psychological evaluation of the appellant is made before the final submissions are advanced, it will go a long way in rendering assistance to the Court.   

Hence, the Court allowed the appellant’s counsel access to the appellant to bring mitigating circumstances on record if any. The Court expressed,  

“Since the appellant has been awarded death sentence, in our view, facets of the matter touching upon the character and behaviour of the appellant would be essential in order to have complete assessment in the matter.”  

In the backdrop of above, the Court issued the following directions:   

  1. State of M.P. to place reports of all the Probation Officer(s) relating to the accused.  
  2. Place a report of the Jail Administration about the nature of the work done by the appellant while in jail.  
  3. The Director, MGM Medical College, Indore, was directed to constitute a suitable team for psychological evaluation of the appellant.  
  4. The Jail Authorities, Central Jail, Indore, where the appellant is presently lodged, were directed to render complete co-operation in facilitating access to and due evaluation of the appellant in all respects.  
  5. Ms. Baljeet Kaur, who is associated with Project 39- A of the National Law University, Delhi, was allowed to have access to the appellant to submit an appropriate Report. 

The Registry was asked to immediately send due intimation to all the authorities concerned. The matter is placed on 15-09-2022 for final disposal.  

[Karan v. State of M.P., 2022 SCC OnLine SC 732, decided on 20-05-2022]

Appearance by: 

For Appellant(s): Ms. Shivani Misra, Adv. Mr. Rajat Mittal, AOR  

For Respondent(s): Mr. P.V. Yogeswaran, AAG Mr. Yashraj Bundela, Adv. Mr. Sunny Choudhary, AOR Mr. Gaurav Choudhary, Adv. 

Kamini Sharma, Editorial Assistant has put this report together


Case BriefsSupreme Court

Supreme Court: While addressing an appeal alleging solitary confinement of a death row convict, the 3-Judge Bench of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., directed local inspection by a District Judge to throw light on the ground situation.  

A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.

Dr. Yug Mohit Chaudhry, counsel for the appellant stressed that the appellant was kept in solitary confinement right from the decision of the Sessions Court awarding him death sentence. To strengthen the argument the counsel submitted various documents including the Prison Manual in support of the submission that, as the petitioner was segregated and kept in a separate Cell that would amount to solitary confinement, in terms of the law laid down in Sunil Batra case (supra).

The State Government opposed the allegation of solitary confinement, however no specific reply was filed in the High Court controverting the basic allegations in the writ petition. The State had only requested that video conferencing be arranged to apprise the Court of the circumstances in which the petitioner had been lodged in a Cell.

The 3-judge Bench opined,

It is true that the Hon’ble Judges constituting the Bench in Sunil Batra’s case had visited the jail premises themselves in order to have first-hand knowledge about the conditions in which said petitioner was lodged. We may at this stage rely upon the local inspection to be conducted by the District Judge, Belgaum who also holds the charge as the Chairman of the District Legal Services Committee, Belgaum.”

Therefore, the Bench directed the District Judge, Belgaum to conduct a local inspection and place a report along with pictures as early as possible and latest by 25-04-2022, to enable the Court to have a clear understanding of the ground situation. To make sure the report deals with required details the Bench issued following additional directions:

  1. “The report shall concentrate on location of the barracks in which the cells of Death Row Convicts are situated.
  2. The inspection shall cover issues whether the inmates of the concerned cells are allowed to intermingle with fellow prisoners, the way the meals are served to them and the duration for which the inmates are allowed to come out of their individual cells. These are only illustrative pointers. What we want to gather is the typical life-style of Death Row Convicts and how their days are spent.”

However, the Bench clarified that the Cells which are close to the gallows and are used for keeping persons about to be executed, are different from the Cells for the Death Row Convicts.

With regard to status of Mercy Petition, the Bench directed the Registry to make copies of the file of Mercy Petition and return the same to the advocate on record concerned in a sealed cover. The matter is to be further heard on 26-04-2022.

[B.A. Umesh v. Union of India, Special Leave to Appeal (Crl.) No(s). 890 of 2022, decided on 21-04-2022]

Appearance by:

For Petitioner(s): AOR K. Paari Vendhan with Yug Mohit Chaudhry, Siddhartha Sharma, Prabu Ramasubramaniam, Payoshi Roy, Raghunatha Sethupathy B., Vishnu Unnikrishnan, Priya R, Advocates

For the Respondent(s): ASG K.M. Nataraj, AOR Arvind Kumar Sharma, AOR Shubhranshu Padhi, AAG Nikhil Goel, Sr. Advocate Sonia Mathur and Khushboo Aggarwal, Prerna Dhall, Simarjeet Singh Saluja, Shailesh Madiyal, Sanjay Kumar Tyagi, Ashish Yadav, Rakshit Jain, Vishal Banshal, Aditya K. Roy, Advocates

Kamini Sharma, Editorial Assistant has put this report together 

ArticlesMental Health

In the midst of winter, I found there was, within me, an invincible summer.

Albert Camus

With the Government directing a countrywide lockdown in 2020, our movement got restricted to our homes. But the question was: did our life really get restricted in these times? For me, even with this lockdown/pandemic, my mind simply refused to be locked down. In fact, it was blooming. Blooming with thoughts, which, now when I think, were always part of my subconscious but it is during the last two years that I thought about them, may be, consciously.


Life has always been known to be unpredictable. The fragility and vulnerability of life is experienced in moments of loss whether personal or public. Or pandemics like we are currently facing, which bring us close to this reality. What is certain, is death. The fear of the unknown, does not allow us to live, live in the present. We mostly live our lives cribbing about the past, fearing about our future and completely forgetting about in the moment, which is now. It is well said that crisis like situations serve as an intense reminder to each one of us to pause, reflect, and take stock of our priorities. It forces us to put things in perspective, challenges us to expand our understanding of how things work, and connects us with one another in a profound way.


I frankly have nothing to complain from this pandemic. I am nothing but grateful. But does that mean I have had a gala time, sitting in my pyjamas all day, getting my fat pay cheque at the end of every month? The answer is no.


According to me, the kind of complex lives we are all leading today, is not sustainable. I would be lying if I would say that everyday was all normal for me in these last two years, in fact, in the last couple of years. Working from home; handling a toddler; doing all odd jobs; household chores; juggling between work and home can make anyone go crazy. It is even more difficult if you are the kinds who enjoys her work; wants a career and is ambitious.


This time gave me the kind of churning/the manthan that I really required. This period brought me close to myself. It gave me a perspective to a lot of things which were missing in my life. Had it not been for this period, I would have may be continued to live my life through distractions, like the most of us do today, pushing the burning questions to the next day and to the next day, and before we know it, its time. It is these times, which made me spend time with my daughter, the kind of time she and I deserved. I could see her grow. We have created memories together. I got to spend time with my family. Most basic but true in my case, I got to enjoy my house, where in the last 14 years, I came only, may be, to sleep. I got the time to go back to things I once loved doing. Amongst others, I got back to writing. The question was, “did anyone stop me from doing what I did in the last two years or was I (with my conditioning), the real hindrance to my own growth?”


Having had a career, most would envy, there were aspects which were unsettling for me. When I would sit by myself, I would constantly travel back through my time machine to the happy times spent as a junior to Justice Kaul and wished how I could go back to that time. This is, when (1) I have had the pleasure of working with some of the bright minds at my workplace; (2) I had a family like team; and (3) had an overall healthy work environment. A deeper introspection made me realise that through these years, I had completely lost sight of and moved away from the reasons why I chose to do law in the first place. Amongst other reasons, I was unhappy for I had trapped myself to the conditioning of the society and did not know how to detangle from that web. I had a life way too comfortable to let go. It is the social construct of our society, I feel which somewhere makes you tick the boxes, which if given a choice to redo, you would not have wanted to tick. An evening out with friends to a fancy restaurant with your exquisite jewels/clothes on, in an ostentatious car is a great distraction, but when you are back home, to yourself, behind those close doors, when no one is watching, having a conversation with self, the thought of, “what am I doing? Is this what I really want? Is this how it is going to be for the rest of my life?” can be troubling, sometimes engulfing. Until the next day, you return back to normal. But the question is, is it normal?


Another blow came around when I saw people close to me in our fraternity dealing with their struggles quietly. Through different conversations, I realised that as lawyers, often what we fundamentally miss is that acting as sounding boards to clients, we get vicariously affected. We do not want to acknowledge that there is a problem and/or deal with the root cause, we are happy with finding distractions. That is why, that drink in the evening is so important for us.  I still remember, as a young member of the Bar, the first guiding principle told to me by my senior was, “… do not get attached to a brief, it would be the biggest mistake of your life”. I understand it fully well now. Even before we know it, being a constant ear to all the problems brought to our attention, can get to us. After all we are humans not Gods/demi-Gods.


I feel, while this issue has always been there, the pandemic, made us confront it at close quarters from where there was no running away. It was a dormant volcano waiting to be erupted. One comforting factor through this manthan was that I was not alone. I felt that to each one of us, the reasons may be different; causes may be different, struggle may be different, but, one common thread that binds us is that there is a problem which needs to be brought to the forefront and needs to be addressed. And interestingly, it is not a problem restricted to a particular set of lawyers. It is equally relevant for all members of the legal fraternity be it the judiciary; senior counsels; in-house counsels; lawyers working in law firms; independent counsels as well as law students. Each one with their own unique story to narrate.


I feel, to bring about a change, changes have to be brought both at the community level as also at an individual level.

At a community level, we need to recognise and realise our interdependence on each other. A collective conversation about the well-being of those around us is necessary. It is imperative to shatter stigmas, initiate serious and concerted conversations and a collaborative public-private-social partnership approach to redress issues concerning mental health and well-being in the legal fraternity.


They say, be the change you want to see. At an individual level, I think, we need to ask ourselves this question, “what are those small little changes that I can make to my life or rather would want to make to my life to see a better me”.


Solution is within us not outside but are we ready for it is the real question. Try to understand and accept your cause. Having no reason at all is also ok. Is it stemming out of an emotional blockage/baggage giving you a feeling of insecurity; fear; guilt, yearning for sympathy of others; ignorance of true knowledge; worry about the future; inability to focus and work to your own perfection or a combination of these or more factors or none at all.


At this juncture, I am reminded of the famous Jagjit Singh’s gazal, “Tum itna jo muskura rahe ho, kya gam hai jise chipa rahe ho.…” Its time, that for once, we remove the supermen/superwomen’s robes that as lawyers the society has bestowed us with and remind ourself that we are human beings. Being human is our greatest responsibility towards ourself. There is one life to live which each one of us should live without any fetters.


Through my little realisation, I have learnt to take pride in who I am, accept myself, my journey, organise my priorities, be kind to myself, make the conscious choices that I feel are relevant and important to me (and not because the society expects me to). It is only when I would respect myself, love myself that I would be able to grow and evolve and help others around me, else I would remain stuck to the clutches of the society.


It is time that we ask ourselves, “is our life determined by our conscious intentions and deliberate choices, or are we mechanically reacting to the world around us?”


To end, let me quote Nora Roberts,

“if you do not go after what you want, you will never have it. If you do not ask, the answer is always no. If you do not step forward, you are always in the same place”.


You decide, the choice is yours.

† Independent counsel and Arbitrator. She is also a Trained Mediator; Former Partner, Disputes, Cyril Amarchand Mangaldas.

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., directed the Chief Secretary, Government of Bihar to take all steps ensuring the establishment of State Mental Health Authority as per Section 45 of the Mental Health Care Act, 2017.

The object and purpose of the Mental Health Care Act, 2017 is to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during the delivery of mental healthcare.

Chapter VII of the said Act specifically deals with the establishment and composition of the State Authority, to be termed as the “State Mental Health Authority”.

The Bench noted that as per the affidavit of the State, the said authority as referred to above has not yet been constituted.

High Court remarked that,

“It appears that mental health of a person and/or treatment of those who are in need, more so during the time of COVID-19, is the least priority of the State Government.”

Bench noted that the step for establishing the authority commenced in the year 2020, that too, with the publication of an advertisement in the newspaper and since then nothing has been done to expedite the process.

The affidavit filed by the Additional Directors, Health, Bihar Patna has averments as vague as they can be, it does not address the pertinent questions regarding how much time would it take for the establishment, who all are engaged in the selection process and on which stage it is.

Bench added that,

“We only remind the Government that Covid-19 was declared as a ‘Pandemic’ only on 24th of March, 2020 and since then despite the first, the second and the third wave, which fortunately we have been able to overcome despite the adversities; challenges; and the hardships, all institutions/establishments/organs of the State have become fully operational and functional.”

Hence, the Court directed the Chief Secretary, Government of Bihar to forthwith take all the steps ensuring the establishment of the authority as stipulated under Section 45 of the Act and an affidavit be filed with regard to indicating the latest status by the Chief Secretary, Government of Bihar before the next date.

Matter to be listed on 25-2-2022. [Akanksha Maviya v. Union of India, 2022 SCC OnLine Pat 305, decided on 10-2-2022]

Advocates before the Court:

For the Petitioner/s :

Mr. Vishal Kumar Singh, Advocate Mr. Akash Keshav, Advocate

Mr. Deepak Kumar Singh, Advocate Mr. Shashwat, Advocate

For the Respondent/s :

Mr. Dr. K. N. Singh ( ASG )

Mr. S.D. Yadav, AAG-9

Mr. Kumar Priya Ranjan, Advocate

ArticlesMental HealthOp EdsOP. ED.

Rabindranath Tagore’s eternal poem “Where the Mind is Without Fear” grants us a window of imagination into a world that is free of fetters. This glimpse is evocative because each one of us yearns to exercise the fullest of our capabilities and live out our inchoate potential. Just as every imagined universe is also a guide, Tagore’s poem enjoins us to build an environment where individual aspirations can be fulfilled.


In our context however, the elimination of “fear” can just as easily mean the fear of speaking out about mental health. The stigma that accompanies conversations of mental health is all-pervasive. It follows us at our homes and our workplaces and when we converse with our peers and seniors. The fear of being marked out as “different” creates a chilling effect for everyone who wishes to speak out but cannot do so. One cannot prosper when one cannot speak about what truly ails them. One cannot build an environment where one’s abilities and talent are able to flourish if considerations of mental health remain suppressed under the surface.


In order to work towards Tagore’s dream, a collective conversation about the well-being of those around us is necessary. It is important to pierce the veil of uncomfortable silence that trails us in our offices and courtrooms. For only when our fear of thinking is eliminated can we build our “heaven of freedom”.


The legal fraternity stands as a beacon of hope, a knight in shining armour, a flag bearer of justice to give an ear to the cry of the litigants.  An outsider is often as oblivious about the human behind the lawyer as he is about the working of the judicial system.  The successful lawyer is the face he sees not knowing the midnight oil burnt that wrinkled those brows, the long battle to the top, the skills honed over decades.  The struggle of the young lawyer often remains unknown and unattended.


The last two years have been a period of rising challenges for the legal fraternity but to many both inside and outside the legal profession the term “mental health of legal professionals” may sound like a contradiction.  On the ground however, the term attains enormous significance.  Limitless working hours, tight deadlines, client’s expectations in the midst of cut-throat competition and the adversarial nature of the practice of law undoubtedly lead to high stress situation that legal professionals encounter on a daily basis.  The unspoken prerequisite for being on the top of your game only adds to the lawyer’s turmoil.  In the cauldron of professional life, lawyers often find themselves unable to express or share their mental condition, lest they jeopardise their reputation and perception of mental “fitness” to be a lawyer.

The endless race to the pinnacle of the legal profession has only stigmatised any discussion surrounding mental health.  Thus, conversations on well-being are hushed away behind piles of files/documents squeezed out of tiny office chambers and washed down hurried morning showers. Courtrooms come with their barrage of inextricable stress characterised by interpersonal tension, high-stakes decisions, and sometimes, retellings of very serious and traumatic crimes. Needless to say, mental health and the judicial system are intrinsically interlinked.


The Indian legal fraternity is certainly not an exception to the problem at hand.  Studies of far-away nations reveal disturbing facts on mental health of lawyers. Researchers at Johns Hopkins University discovered that lawyers had three times the rate of clinical depression compared to professionals in 25 other occupations. Approximately 15 per cent of lawyers have been found to encounter some form of depression during their careers.1  A survey conducted by the Canadian Bar Association, reveals that about 58% of lawyers, attorneys, law students, Judges experienced stress burnouts, whereas about 48% of the legal professionals were subjected to anxiety disorders and 25% of the lawyers were suffering from depression.2 As is unfortunately often the case, significant professional stress is accompanied by unhealthy coping mechanisms. According to American Bar Association’s 2020 profile of the profession, lawyers have been and still are more susceptible to addictions as compared to the general population.3  While developed western societies have led the discussion and acknowledgement around mental issues and well-being of lawyers, developing nations of the Asia-Africa-Pacific are yet to get there.


They say, “be willing to change because life will not stay the same”. But no one knew it was going to be so drastic. Already sailing in troubled waters, the COVID-19 Pandemic seems to have only added to the stress of legal fraternity. With courts and offices shutting down in early 2020 due to fear of spread of infection – lakhs of lawyers, clerks, law students, and support staff were left fending for themselves. The functioning of our court system, as well as legal offices had to be drastically altered. For practicing lawyers, coffee table conversations were replaced with quick-fire messages on virtual platforms, and in-person meetings transitioned to video calls. Interactive seminars and lectures shifted to faceless displays, and face-to-face interactions were even harder to come by than normal. For many professionals, remote working has blurred all physical and emotional borders between work and family lives, making it far more difficult to achieve a healthy work-life balance, especially for the young professionals and fresh law graduates who seem to be struggling the most in these uncertain times. Many reports show that lawyers who were satisfied in their work from home roles have also experienced early burnouts and severe mental hardships.


The durance of practitioners in the narrow confines of their homes for almost two years has compelled a process of introspection towards need to monitor mental well-being in addition to just physical health.  It is said that in suffering is the opportunity to evolve and to grow.  The promise of Article 214 of our great Constitution comes to mind – it is the promise of life, of liberty, of livelihood, of “Ubuntu”, which has sustained the society through the periods of lockdowns and confinements.  One hopes that a more humane society built around ideas of equity and community would emerge. However, the fact is that the disparities have increased.  Ironically, the society coming together to carry out its respective responsibilities in the battle against COVID-19 has emphasised the point that humans cannot live in isolation – community and mental well-being lie at the core of humanity.  In fact the human race must subsist with the different forms of life on the earth and the sea and one must, with deep sense of regret, accept the “inteha” of the human race against other forms of life.  The human race seems to be living with an unreal assurance as if it possesses more than one earth’s resources to live by.  The strength of the mind is important to both acknowledge and remedy the ground reality.


India as a founding member of the United Nations, has ratified various international conventions promising to secure mental healthcare right of individuals. The eventual enactment of Mental Healthcare Act, 20175 setting maximum standards for institutional care has been a step in the right direction at the right time, conferring citizens with the right to healthcare, live in community, legal aid, contracting rights, information and protection from cruel treatment. Various initiatives like the District Mental Health Program providing basic mental healthcare services at community level and guidelines and policies under the aegis of National Task Force for the finalisation, implementation, and monitoring of the psychosocial action plan for COVID-19, have been satisfying initiatives.6  The National Human Rights Commission and the Indian Psychiatry Society have also taken initiatives towards active research and recommending action plans to promote mental health and well-being to the Government. NGOs across the nation have launched community programs to increase mental health awareness by launching mental health boot camps in urban and rural areas and providing research and training facilities at educational institutions. The Department of Empowerment of Persons with Disabilities has launched a 24×7 toll-free helpline aimed at anonymously providing mental health rehabilitation to people undergoing stress due to the pandemic.7


It is also heartening to see the fillip given to mental health in the Union Budget of 2022. The Central Government’s decision to set up 23 tele-mental health centres across the country comes at an opportune moment, as many in our country are often unable to find the language or courage to articulate their mental turmoil. The Government has now put the issue front and centre in the public forum, and the same should hopefully encourage more and more people to seek the help that they may require.


The problem surrounding the mental health issue in the legal fraternity is also required to be dealt with on a war footing.  A recent example of timely and appropriate judicial activism is by the Madras High Court which was dealing with a petition to create a psychiatric wing for mental health treatment in prisons. The Court took note of the lack of mental health treatment infrastructure across India.  The High Court while expanding the scope of the writ petition suo motu impleaded different government ministries and asked them to immediately address issues surrounding lack of mental health infrastructure in India.  The High Court’s activism in raising crucial questions around the state of the mental health epidemic in India especially in the present times, deserves appreciation. The High Court of Delhi,8 has also come to the cause and rescue of mental unwell patients. Sensitising on the issue of mental illnesses, the High Court observed that:

  1. mental illnesses can also be debilitating and destructive. The recent pandemic also highlights this beyond any doubt. Circumstances leading to patients requiring isolation, healthy persons being subjected to lockdowns, work from home conditions, loss of employment leading to lack of confidence for long durations have led to several mental problems. Such mental conditions need to be dealt with immediately.9


More and more State and local Bar Associations have recognised the reality of lawyers experiencing mental health issues. A number of lawyer assistance programs on handling issues of burnout, depression, addiction and other psychiatric tendencies have taken shape.  The Supreme Court of India has taken some encouraging steps in coming to the aid of mentally unwell individuals and professionals.  In an initiative envisioned towards ensuring overall wellness and creating awareness amongst stakeholders, the Supreme Court successfully conducted an interactive workshop called “Mind Matters”10. In an ongoing matter, the Supreme Court recently urged the Central Government to take the condition of patients in mental healthcare institutions “more seriously” amid the COVID-19 Pandemic, and to test, trace, and vaccinate those suffering from mental illness on priority.11


It is also important to stay abreast of international best practices in dealing with mental health in legal workplaces. One such encouraging technique is that of “trauma-informed lawyering”, where lawyers are trained to engage with clients in a manner that minimises the traumas of both the client and the lawyers themselves. This is especially useful in cases of family disputes, such as divorce or custody issues. A scientific and rational approach such as this improves advocacy and aids lawyers in maintaining a healthy mental balance.


As Kakuzō Okakura said, “the art of life lies in a constant readjustment to our surroundings”. In today’s times, mental health is as important as maximising the use of technology, reconfiguring courtrooms to provide social distancing, identifying strategies to hold virtual hearing, and determining how to return to “business as usual”. Timely intervention, awareness about the issue, availability of professional help and appropriate policies is the only way to improve the situation. It is thus imperative to shatter stigmas, initiate serious and concerted conversations and a collaborative public-private-social partnership approach to redress issues of mental health and well-being. It is more important than ever that the legal system makes significant improvements in its approach by creating an emotionally and mentally healthy workplace. Undeniably, there is now a greater sense of understanding within the legal industry that could help propel progress toward improved mental health beyond the duration of the pandemic. The current crisis should be an eye-opener for the legal profession to carefully think through what lessons to extract, including how to adapt to a changed reality.

To end, we must reminisce the late Martin Luther King, Jr. (whose debilitating depression and eventual rise gives us new appreciation) words, “Only in the darkness can you see the stars.”

 Judge, Supreme Court of India.

†† Advocate and former Law Clerk assisted by Aman Singhania, Advocate.

1 Andrew Imparato, Mental Illness in the Legal Workplace, Diversity & the Bar (May/June 2005), available at <>

2 Survey of Lawyers on Wellness Issues. Available HERE

3 Judges are stressed by their decisions, and 20% have at least one depressive symptom, survey finds. Available HERE

4 Constitution of India, Art. 21.

5 Mental Healthcare Act, 2017.

6 Resources, Behavioural Health, available HERE.

7 Soniya Agrawal, Govt Launches KIRAN, a 24×7 Helpline for People to Seek Mental Health Counselling, The Print, 7-9-2020.

8 Shikha Nischal v. National Insurance Co. Ltd., 2021 SCC OnLine Del 2577.

9  Shikha Nischal v. National Insurance Co. Ltd., 2021 SCC OnLine Del 2577.

10 Bar and Bench, Supreme Court to hold a workshop on Tuesday, September 15, to create awareness on mental health issues caused by COVID-19 Pandemic, 14-9-2020, available HERE

11 Gaurav Kumar Bansal v. Dinesh Kumar, 2018 SCC OnLine SC 3522.

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: In a case where the Single Judge of Karnataka High Court had termed person committing suicide a ‘weakling’ and also made observations on how the behavior of the deceased before he committed suicide was not that of a person who is depressed and suffering from mental health issues, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has held that such observations describing the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues and that,

“The mental health of a person cannot be compressed into a one size fits all approach.”

Factual Background

Deceased, who was working as a driver for the accused-second respondent, was found dead on 6 December 2016, with a 12 pages long suicide note next to him. The suicide note was uploaded by the deceased on his Facebook account through his mobile.

The suicide note has referred to the illegal activities of the accused in amassing wealth in excess of Rs. 100 crores, converting black money into white and transferring funds from the bank account of the deceased through his mobile to the accounts of the relatives of the accused. The complaint alleged that the accused had threatened the deceased with death and harassed him as a result of which the deceased, having suffered mental stress, committed suicide by consuming poison. Both the second respondent and his “house driver” were specifically named as responsible for this death.

Details highlighted in the note:

  • The transfer of funds in several lakhs of rupees by the accused to his relatives by using the cell phone and bank account of the deceased;
  • The conversion of approximately Rs. 100 crores into currency notes of Rs. 2,000/-, Rs. 100/- and Rs. 50/-;
  • The knowledge of the deceased in regard to the transactions of the accused as a result of which he had been threatened to be killed “by rowdies”;
  • A raid conducted against the accused by the establishment of the Lokayukta of Karnataka while he was posted in the Housing Board;
  • The involvement of judges to whom presents or gifts were made;
  • The payment of salary to the deceased having been stopped at the behest of the accused;
  • The accused having used the deceased for changing currency worth over Rs. 75 crores; and
  • The deceased being in knowledge of “all the information”, and when a shortage of an amount of Rs. 8 lakh was found, the deceased had been directed to make good the deficiency, failing which he was threatened to be killed by rowdies.


The Court noticed that the High Court has evidently travelled far beyond the limits of its inherent power under Section 482 CrPC since instead of determining whether on a perusal of the complaint, a prima facie case is made out, it has analysed the sufficiency of the evidence with reference to the suicide note.

While adjudicating on an application under Section 482 CrPC, the High Court in the present case travelled far away from the parameters for the exercise of the jurisdiction. Essentially, the task before the High Court was to determine whether the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety did or did not prima facie constitute an offence or make out a case against the accused. Instead of applying this settled principle, the High Court has proceeded to analyze from its own perspective the veracity of the allegations.

“The entire judgment of the High Court consists of a litany of surmises and conjectures and such an exercise is beyond the domain of proceeding under section 482 of the CrPC. The High Court has proceeded to scrutinize what has been disclosed during the investigation, ignoring that the investigation had been stayed by an interim order of the High Court, during the pendency of the proceedings under section 482.”

The High Court observed that a prima facie case for the commission of offence under Section 306 of the IPC is not made out since:

  1. the suicide note does not describe the specific threats;
  2. details of the alleged demand of Rs. 8 lacs from the deceased by the respondent-accused are not set out in the suicide note; and
  3. no material to corroborate the allegations detailed in the suicide note has been unearthed by the investigating agency.

The High Court observed that since the deceased took considerable time to write a twelve page suicide note, “it would have been but natural for the author to set out the details”.

Not only this but the High Court had commented upon and made strong observations on the suicide note itself, diminishing the importance of mental health.

The Single Judge had observed:

37. It is not the case of the deceased that the accused had deprived him of his wealth or have committed acts that have shattered his hopes in life or separated him from his family and friends.


    1. [..] It is not the case of the prosecution that the deceased was running away from or escaping the petitioner or his henchmen, but as is his habit, to visit his parents and to spend time with his friends. If the deceased had really felt threatened, he would have definitely approached the police. It is not that he was naive or not worldly-wise. If his employment with the petitioner was true, then the Police Commissionerate was only a stone’s throw away. It is not that the deceased was a weakling. The deceased by profession, is a driver. A profession where, accidents causing loss of life and limb are a daily occurrence and every driver is aware that he could be involved in an accident at any time.


    1. His act of attending a relatives marriage in a different town and his interacting with friends and relatives are all actions of a normal person and not of a person under severe duress. The contention that this criminal case would jeopardize his career progression also cannot be brushed aside. It is also not forthcoming as to how he sourced the poison.”

The Court held that the above mentioned observations describing the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues.

“Behavioural scientists have initiated the discourse on the heterogeneity of every individual and have challenged the traditional notion of ‘all humans behave alike’. Individual personality differences manifest as a variation in the behavior of people. Therefore, how an individual copes up with a threat- both physical and emotional, expressing (or refraining to express) love, loss, sorrow and happiness, varies greatly in view of the multi-faceted nature of the human mind and emotions.”

[Mahendra KC v. State of Karnataka, 2021 SCC OnLine SC 1021, decided on 29.10.2021]


For Complainant: Mahesh Thakur

For State of Karnataka: V.N. Raghupathy

For respondent-accused: Sharan Thakur

*Judgment by: Justice Dr. DY Chandrachud

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., addressed the instant suo motu case pertaining to the plight of mentally ill remand prisoners who had been left to languish in prisons due to them being abandoned by family and friends. Calling it blatant violation of basic human rights as well as of fundamental rights guaranteed by the Constitution, the Bench expressed,

“The powerless, voiceless mentally ill prisoners languishing in prisons and mental health centres for years together, embroiled in legal quagmire and abandoned by family and friends. The system and the society presume them to be devoid of knowledge and feeling, thereby turning them into stone.”

According to the State government’s as on 10-08-2020, there were 77 convicts/ remand prisoners undergoing treatment in Government Mental Health Centres in the State, of whom 22 were continuing after acquittal. Of the other 55 prisoners,48 were undertrial prisoners and 7 were convicts. Out of the 22 acquitted persons, 18 were fit for discharge and could be sent to rehabilitation centres and even from among the under trial prisoners, some were fit to be rehabilitated.

Noticeably, the Government had framed a scheme for rehabilitation of mentally ill prisoners continuing in Mental Health Centres after acquittal; which provides for shifting such prisoners to Psycho-Social Rehabilitation Centres which had expressed willingness to look after such persons. The Government had also decided to sanction an amount of Rs.39,660/- per year to such Psycho-Social Rehabilitation Centres essential.

Infinite Detention of Mentally Ill Prisoners

After pursuing Chapter XXV, (Ss. 328-339) of the Code of Criminal Procedure, which governs the enquiry, trial and acquittal/conviction of mentally ill persons; the Bench observed that in spite of being found eligible for discharge or release on bail or even on being acquitted, a mentally ill prisoner may have to continue in prison or a mental health facility, until a friend or relative volunteers to take him and to give him proper care. Such good Samaritan’s being absent in the case of most of the mentally ill accused, they continue to languish in prisons and mental health centres for years together.

“Even worse is the case of under-trial prisoners, who are to continue under remand till they are capable of making their defence, which may take years together and for the most unfortunate, may never happen.”

Inadequate Implementation of Statutory Safeguards

India, being a signatory to the United Nations convention on rights of persons with disabilities and it’s optional protocol. Hence, to follow its international obligation, it had replaced the Mental Health Act, 1987 with the Mental Healthcare Act, 2017 to bring about revolutionary changes in the life and living standards of persons with mental illness. The 2017 Act aims to make community living the right of every mentally ill person, and guarantee the right to protection from cruel, inhuman and degrading treatment.

Noticing that most of the Sections of Chapter XXV of the CrPC still term mentally ill accused as ‘lunatic’ and for mental health establishments the term used is lunatic asylum, the Bench stated,

“Not only the terminology, the procedure prescribed in Chapter XXV has to be amended, to make the provisions commensurate with the the Mental Healthcare Act, so as to achieve the laudable objective of the Act, viz., to make improve the life and living standards of persons with mental illness.”

Relying on the Supreme Court’s decisions in Hussainara Khotoon v. Home Secretary, (1980) 1 SCC 81, and A.R.Antulay v. R.S.Nayak, (1992) 1 SCC 225, where it was held that right to speedy trial is integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution, the Bench stated, if the provisions of the Act gets implemented in its letter and spirit it would undoubtedly provide solace to the mentally ill persons, including the mentally ill prisoners.

Conclusion and Directions

Considering the report of the Kerala Legal Services Authority (KELSA), the statement submitted on behalf of the Government, the relevant provisions under the CrPC, the Mental Healthcare Act and being guided by the doctrine of parens patriae, the Bench issued following interim directions;

  1. The State Government shall forthwith set up a mental health establishment, as stipulated in Section 103(6) of the Mental Healthcare Act, in at least one prison in the State. The prisoners with mental illness shall ordinarily be referred to and cared for in the said mental health establishment.
  2. The Government shall forthwith constitute Mental Health Review Boards under Section 73 of the Mental Healthcare Act, the composition of which shall be in accordance with Section 74 of the Act.
  3. The Medical Officers of prisons and mental health establishments shall strictly comply with the duties imposed on them under Section 103 of the Mental Healthcare Act.
  4. The Mental Health Review Boards shall ensure that prisoners with mental illness are allowed to live with dignity and treated as equal to persons with physical illness.
  5. The Mental Health Review Boards shall make available details of the mentally ill remand prisoners detained in jails and mental health establishments to the Kerala State Legal Services Authority.
  6. The State Government shall, with the assistance of the KELSA, take necessary steps to trace the relatives of acquitted mentally ill prisoners and of the under-trial prisoners fit for rehabilitation and persuade their family members to provide necessary care and protection to those persons. If the family members of the acquitted mentally ill persons refuse to take them back, the State Government shall take steps for their rehabilitation by transferring them to the willing registered mental health establishments. Once the mentally ill acquitted person is shifted to a mental health establishment, the amount fixed by the Government scheme shall be disbursed to that establishment.
  7. The Social Justice Department shall file a report specifying the steps taken in terms of the above directions.

[Suo Motu v. State of Kerala, OP(CrL.) No. 487 of 2019, decided on 13-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J., allowed the petition and directed termination of pregnancy.

The instant petition was filed seeking termination of pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 (for short Act of 1971).

Counsel for the petitioner Ms. Aditi Singhvi submitted that the petitioner was subjected to rape and the case was registered under sections 376, 376 (2) by result of such rape she conceived and is forced to continue the pregnancy which would eventually constitute a grave injury to the mental health of the pregnant woman.

The Court observed that the amended Section 3 of the Act of 1971 show that the length of pregnancy can be terminated in opinion of registered medical practitioner formed in good faith that pregnancy would cause grave injury to physical and mental health of woman and where the length of pregnancy does not exceed twenty weeks. Explanation 2 the same is prescribed wherein it is stated that the pregnancy which is caused by rape would presume to cause grave injury to mental health of the pregnant woman. The fact of rape is also supported by the State that the victim was subjected to rape. The report of the District Medical Board shows that the opinion was formed that MPT can be safely done as the pregnancy is within a period of 20 weeks and the victim is mentally and physically fit for the medical termination of the pregnancy.

The Court relied on judgment Suchita Srivastava v. Chandigarh Admn, (2009) 9 SCC 1 wherein it was held

“a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”.

“22. There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.”

The Court directed “the petitioner shall be entitled to Medical termination of pregnancy. In order to carry out the pregnancy State shall form a panel of expert doctors at the District Hospital Durg as early as possible.”[ABC v. State of Chhattisgarh,  2021 SCC OnLine Chh 1728, decided on 25-06-2021]

Arunima Bose, Editorial Assistant has reported this brief.


For Respondent/ State :  Shri Alok Bakshi

Op EdsOP. ED.


Juvenile justice system (JJS) and the mental health of juveniles involved are inherently related. Children in conflict with law and children in need of care and protection are more likely to be prone to mental health and substance related problems. On the corollary, children having mental health or substance related problems are more likely to come in contact with the Juvenile justice system. Juvenile Justice (Care and Protection of Children) Act 2015[1] focus on the developmental well-being of the children coming in contact with the JJS, including their psychological well-being, and focus on their social reintegration and rehabilitation.

Being the future of any society, and a vulnerable section of the same, children deserve laws that focus on their well-being and protection. India does have many child centric laws such as Child and Adolescent Labour (Prohibition and Regulation) Act, 1986[2], the Juvenile Justice (Care and Protection of Children) Act, 2000[3], the Prohibition of Child Marriage Act, 2006[4], the Right of Children to Free and Compulsory Education Act, 2009[5], and the Protection of Children from Sexual Offences Act, 2012[6]. Among these acts, the JJ Act deals with children in conflict with law and children in need of care and protection.

Studies show that at some juvenile justice contact points, as many as 70% of the youth have diagnosable mental health problems. The commoner ones include externalising disorders like attention deficit hyperactivity disorder (ADHD), substance abuse disorders, or internalising disorders like anxiety disorders and mood disorders. Externalising disorders increase the chances of youth delinquency, violence and recidivism[7], while early identification and treatment result in decreased rate of delinquency and better social integration.[8]

This paper attempts to highlight the relevant sections of the Juvenile Justice (Care and Protection of Children) Act, that deal with mental health aspect of the children and the potential role that mental health professionals can play, along with challenges and opportunities involved.

Factors responsible for juvenile delinquency

The intensity and severity of juvenile offences are generally determined by the social, economic and cultural conditions prevailing in the country. The causes of such behaviour, like all other crimes, find their roots in complex psychological, social and economic factors. Clinical studies have found emotional and mental maladjustments arising out of disorganised family problems to be a common cause behind such behaviour.[9] The causes for delinquent behaviour among juveniles are found at all stages of society, including society itself, social institutions, social groups and organisations and interpersonal relations.

Factors associated with youth crimes and delinquent behaviour are strikingly similar across nations. An international study shows that family disadvantage leads to educational disadvantage, which leads to underachievement, economic marginality, social education, and mental stress.[10]

A juvenile delinquent is the outcome of unwholesome environment congenial for the development of his faculties in conformity with social expectations. Such behaviour often occurs in social settings where the norms for accepted behaviour have broken down and the rules that deter people from committing socially unacceptable acts become irrelevant to certain members of the society. Thus, they response to the traumatising and destructive changes in their surrounding by rebellious behaviour and criminal activities.[11]

The social factors also play an important role in persuading a child towards delinquent behaviour. These factors include the behaviour of the people that the child interacts with during a certain age, like neglect, favoritism, bullying, or cruelty of parents, school teachers, or peers. This results in inferiority complex, fear of opening up, fear of apprehension, and shame at school, home, or among friends.[12] Delinquent behaviour can also be attributed to lack of education, or poor performance at school. The present education system and the society place undue importance in training the intellect of children rather than their emotional and mental well-being. This may result in neglect towards social expectations and association with people involved in criminal behaviour.[13] Another reason that can be attributed to delinquent behaviour is socio-economic background. Socio-economic instability is often linked to low income which may lead the young to resort to criminal behaviour. The present-day developing societies are dynamic and self-explanatory in its complexity followed by never-ending changes. The socio-economic change and the crises in those societies often uproot people from their traditional communities and alienate them as they lose access to their former social support networks.[14]

Television and media have popularised heroes who promote justice through physical elimination of wrongdoers. The impact of media and video games on the impressionable minds of young individuals and children is a popular debate. Children who watch violence tend to react aggressively to triggering situations. The media brings violence in individual’s nature in various ways. Firstly, movies that portray violence can excite young people and the aggression can be transferred to daily lives of impressionable children. Secondly, television shows daily violent acts by parents and peers, which leads children to believe that the acts are normal and part of routine lives. Thirdly, the violence on media and games are fake and surreal. They are also romanticised. Wounds bleed less and the agonising pain is rarely shown. So, the consequences of violent behaviour seem negligible. It causes children to believe violence is desirable and preferred way of establishing justice and acquiring what they desire.[15]

The importance of family and family background is an increasingly recognised tool for detecting deviant behaviour in young people. Children who receive adequate parental care and support are less likely to indulge in deviant activities compared to children neglected by their parents and families. Dysfunctional family environment like inadequate parental care and support, weak internal linkage and integration, and premature autonomy are closely related to juvenile delinquency. Children belonging to underprivileged families who face the risk of social exclusion are over presented as possible offenders. This has a negative impact on their mentality and attitude. Criminalisation of families is also a possible factor. Families involved in crime would push their younger members towards similar behaviour.

Thus, it is evident that the various possible factors leading to delinquent behaviour, in some way or the other, have an effect on the psychology of the child. Thus, emphasising the importance of the assessment and care of mental health of children in contact with the juvenile justice system.

Juvenile justice system and mental health

India enacted the Juvenile Justice Act, 1986 for the first time in 1986[16], which prohibited sentencing children in conflict with law to prison under any circumstances.[17] Later, being a signatory to United Nations Convention on the Rights of the Child, India ratified the treaty by passing the Juvenile Justice (Care and Protection of Children) Act, 2000, incorporating the provisions of the convention for the protection of children in conflict with law and children in need of care and protection. The Act adopts child friendly approach in the adjudication and disposition of matters, to ensure proper care, protection and treatment by catering to their development needs. Further, it mandates the ultimate rehabilitation of children by setting up various institutions for the purpose.

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010[18] omits the provision from the Act that ruled for “separate treatment of juveniles or children suffering from leprosy, sexually transmitted disease, hepatitis B, tuberculosis, and children with unsound minds”. It regulates the power of the competent authority of special homes to move a child from a special home to a special facility, like a mental health institution.

 Further, the Juvenile Justice (Care and Protection of Children) Act, 2015[19] defines child in need of care and protection as one “who is mentally ill or mentally or physically challenged or suffering from a terminal disease and having no support system (parents or guardians) if found so by the Juvenile Justice Board (Board) or the Child Welfare Committee (CWC).”[20] Moreover, the Act also states that juveniles should be given access to rehabilitation and reintegration services by institutions registered under this Act. It also mandates for these institutions to provide mental health services, including counselling focused on the needs of the child.[21] The Act also lays down the provision for moving a child from special homes to treatment centres for mental illness and substance abuse related issues.[22]

Mental health aspects of children involved with juvenile justice system

The mental health of children in conflict law and their delinquent behaviour are interrelated. This could be due to their shared biopsychological vulnerabilities, or the fact that one condition aggravates the other. Not addressing or avoiding these interrelated problems may lead to repetition of offence. Hence, addressing and acknowledging the mental health of such children, and other related issues, is of utmost importance. Mental health professionals can significantly contribute in this process, in the preventive, therapeutic, and rehabilitative fronts, apart from their advisory role in the juvenile justice system. The Act has taken this fact under consideration and provided that no social worker shall be appointed to the Juvenile Justice Board[23] or Child Welfare Committee[24] unless they have experience in education, or are practising professionals with a degree in child psychology, psychiatry, sociology, or law.

The Act mandates that in case of children ages between 16 to 18 years, accused of committing a heinous crime, a preliminary assessment should be ordered for their mental and physical capacity.[25] The Board shall take help of experienced psychologists, psychosocial workers, or other experts in the field. It has been found that children under the age of 14 years, coming in contact with law, are more prone to having mental health issues, as opposed to older children.[26] Since mental health professionals are frequently called upon as experts in such cases, their role becomes extremely important, especially when such cases get highlighted in the media, and the court procedure is likely to be influenced by such factors.

The Act mandates that confidentiality should be maintained while dealing with children in conflict with, or likely to be in conflict with, law, to avoid litigation.[27] This is in conformity to the latest Mental Healthcare Act, 2017, which also emphasises maintaining privacy and confidentiality of a person suffering from a mental illness.[28]

Rehabilitative and reintegrative services form the core of the JJ Act. It mandates the child care institutions to have mental health and deaddiction facilities for the children.[29] The Act also provides that as and when required, a child may also be shifted to a mental health facility or a deaddiction center, for necessary treatment. What is needed is to form a comprehensive post-discharge plan to ensure continuity of care, to avoid worsening of the psychological or behavioural problem, as the case may be.

Challenges in meeting the mental health needs

Although there are major gaps between practice and policies for juveniles who run afoul of the law, India has made a promising beginning by adopting progressive legislation, especially the Juvenile Justice Act, 2015 and the community can provide this vulnerable, yet difficult population a chance at an easier present and brighter future.

The Juvenile Justice Act provides that the mental health and well-being of the children be given utmost importance, in reality, this mandate does not seem to achieve actual practice. Lack of understanding about child psychology and deviant behaviour among social workers, and staff of child care institutions are some of the limiting factors. Lack of training and knowledge on the part of these staff lead to harsh behaviour towards the children, which may lead to worsening of the problem.

There are also incidences of children from the LGBTQ+ communities and children with gender identity issues coming in contact with the juvenile justice system. There is a lack of proper training and sensitisation among the staff of the child care institutions about the problems faced by such children, as they are often prone to bullying by the senior inmates and the workers, which increases the risks of mental health problems.

Although the Juvenile Justice Act requires regular and basic mental health facilities, including specific need-based counselling sessions, many institutions involved in the system run without regular and qualified mental health professionals, or have irregular visits from professionals who are volunteers with NGOs offering supplementary services like health and recreation. A study conducted by National Commission for Protection of Child Rights reflected that children in child care homes face various mental traumas like bullying by senior inmates, sexual abuse, overcrowding, etc. Therefore, there should be regular monitoring of child care homes to keep a check on the treatment of children and the implementation of the provisions of the Act.

Prejudice and stigma are a major challenge in the reintegration and rehabilitation of such children. The society often sees these children as threatening, or possessing a bad character. This leads to marginalisation and lack of social integration, which may cause stress, inferiority complex, or other mental health related issues in the children.

Lack of awareness regarding mental health issues and the stigma around it is a hurdle for early intervention. This results in delay in seeking help till the juvenile comes in contact with the juvenile justice system. It is imperative to spread awareness about mental health and the importance of mental health care.

Conclusion and recommendations

A standardised curriculum should be developed for persons dealing with children encountering the juvenile justice system, which should include educating the personnel about child psychology, different psychological and biological needs of children in need of care and protection and children in conflict with law, as well as sensitisation and awareness about the LGBTQ+ community.

Childcare institutions should be made better equipped by appointment of mental health professionals on a regular basis. Further, regular auditing of the childcare institutions for ensuring proper functioning, availability of qualified staff and mental health professionals and conformity with the provisions of the laws in force should be done. The authority running the childcare institution should be made accountable and answerable for any lack thereof.

Counselling of the juveniles at the time of their entry at the institutions should be made a norm. The counselling should deal with the reason why they are being kept in the institutions, the possible situations that they might face during their stay at the institution, example bullying by senior inmate, and the authority that they should contact in such cases. Additionally, a simple screening mechanism for detection of mental disorders should be developed that would be easy to use by the staff at the childcare institutions with proper training, without the help of mental health professionals. This would enable the institutions to assess the mental state of the children at entry level and provide the required help.

Job and livelihood oriented vocational training should be imparted to the children, tailored to their skills and interests. Digital learning and technology driven courses should be preferred in order to make their reintegration in the society and make it easier for them to find an appropriate job upon their release.

Training and counselling sessions with prior inmates with regard to substance use problems, or other issues, should be available. Since inmates often share similar socio-economic backgrounds and experiences inside the juvenile justice system, it would be easier for the children to talk to and relate to the prior inmates and help in better dealing with the environment in the system.

Awareness about psychological and socio-cultural determinants and the relation between delinquent behaviour and mental health issues should be spread so as to reduce the stigma and prejudice against child offenders that is prevalent in the society so as to ease the process of social reintegration and rehabilitation.

BA LLB (Hons.), National University of Study and Research in Law, Ranchi, e-mail:

[1] <>.

[2] <>

[3] <>.

[4] <>.

[5] <>.

[6] <>.

[7] Fazel, S., Doll, H., Långström, N., Mental Disorders Among Adolescents in Juvenile Detention and Correctional Facilities: A Systematic Review and Metaregression Analysis of 25 Surveys, 47 J Am Acad Child Adolesc Psychiatry (2008).

[8] Shufelt, J.L., Cocozza, J.J., Youth with mental health disorders in the juvenile justice system: Results from a multi-state prevalence study, Delmar, NY: National Center for Mental Health and Juvenile Justice (2006), <>.

[9] F. Ershad, Juvenile Delinquency and Slum Area: A Critical Outlook on Chicago School with Specific Reference to Iran, 38 Indian Journal of Criminology) (2003).

[10] Friday, Paul C., Juvenile Delinquency: An International Perspective, 1-3 Indian Journal of Criminology (2006).

[11] Sanyukta Singh, Juvenile Justice in India: A Critique, J54 Cr. LJ, Vol. 109 (August 2003).

[12] Mohd. Wasim Ali, Juvenile Delinquency in India: A Socio-Legal Study, SCC OnLine 23 ALJ (2015-2016) 258. <>

[13] J.P.S. Sirohi, Criminology and Penology 384 (Allahabad Law Agency 2004).

[14] F. Ershad, Juvenile Delinquency and Slum Area: A Critical Outlook on Chicago School with Specific Reference to Iran, 38 Indian Journal of Criminology) (2003).

[15] Friday, Paul C., Juvenile Delinquency: An International Perspective, 1-3 Indian Journal of Criminology (2006).

[16] <>.

[17] Sagar, R., Patra, B.N., Gupta, P., Gaps Analysis in Mental Health Care Services in Child Care Institutions: A Delhi Based Study, National Commission for Protection of Child Rights (2016), <https://ncpcrgovin/showfilephplid=1283>.

[18] The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010.  <>

[19] Ibid.

[20] S. 2 (14)(iv), the Juvenile Justice (Care and Protection of Children) Act, 2015.

[21] S. 18, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[22] S. 96, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[23] S. 4(3), the Juvenile Justice (Care and Protection of Children) Act, 2015

[24] S. 27(4) and S. 4(3), the Juvenile Justice (Care and Protection of Children) Act, 2015

[25] S. 15, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[26] James G. Scott, Childhood Mental and Development Disorders, 4 Mental, Neurological, and Substance Use Disorders: Disease Control Priorities, <>.

[27] S. 3(xi), the Juvenile Justice (Care and Protection of Children) Act, 2015 

[28] S. 23, the Mental Healthcare Act, 2017 

[29] S. 53, the Juvenile Justice (Care and Protection of Children) Act, 2015

Case BriefsForeign Courts

Supreme Court of United Kingdom: In the instant appeal where the issue was whether the claimant can recover damages for the “consequences” (including the subsequent loss of liberty) of having committed the criminal offence during a serious psychotic episode, which she would not have committed but for the defendant’s negligence; the 7 Judge Bench of Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Hamblen unanimously dismissed the appeal holding that the appellant’s claim for damages against Dorset Healthcare is barred by the appellant’s criminal act of manslaughter, and are therefore irrecoverable by reason of the doctrine of ex turpi causa non oritur actio (from a dishonorable cause an action does not arise) i.e. illegality.


The appellant suffers from paranoid schizophrenia or schizoaffective disorder. On 25-08-2010 she stabbed her mother to death while experiencing a serious psychotic episode. She was charged with her mother’s murder but, in view of the psychiatric evidence, the prosecution agreed to a plea of manslaughter by reason of diminished responsibility. The appellant was sentenced to a hospital order under Section 37 of the Mental Health Act 1983 and an unlimited restriction order under Section 41 of the 1983 Act. The appellant has remained subject to detention pursuant to the 1983 Act ever since. Dorset Healthcare University NHS Foundation Trust (respondent) had admitted their negligence in failing to return the appellant to hospital on the basis of her obvious psychotic state. The tragic killing of her mother would not have occurred had this been done. On the basis of the respondent’s admission of negligence, the appellant furthered her claims to recover damages under several heads, such as- General damages for personal injury (a depressive disorder and post-traumatic stress disorder); damages for her loss of liberty caused by her compulsory detention in hospital; damages for loss of amenity arising from the consequences to her of having killed her mother; cost of caretaker and psychotherapy etc.

The relevant laws and case laws on point:

Before analyzing the merits of the instant appeal, the judges deliberated on the laws dealing with murder; insanity as a defence to murder; diminished responsibility as a partial defence to murder (Section 2 of the Homicide Act 1957); The Sentencing Council Guideline directing the sentencing judge to consider whether the offender’s degree of responsibility is high, medium or lower and the provisions of Mental Health Act, 1983 itself.

The Bench also referred to 2 major case laws dealing with similar issues- Gray v. Thames Trains Ltd, [2009] UKHL 33 and Patel v. Mirza, [2016] UKSC 42. In Gray, the House of Lords had held that Mr. Gray’s negligence claim was barred by the defence of illegality because the damages he sought resulted from: (i) the sentence imposed on him by the criminal court; and (ii) his own criminal act of manslaughter. In Patel, the UK SC had held that the proper approach to the illegality defence at common law was one based on a balancing of public policy considerations. In assessing whether the public interest would be harmed in that way, the Court should consider the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; any other relevant public policy on which denying the claim may have an impact; and whether denying the claim would be a proportionate response to the illegality.


While deliberating on the appeal, the Bench formulated 3 issues– whether Gray can be distinguished; if not, whether Gray should be departed from; and, can the appellant recover the damages under any of heads of loss she has claimed. The Bench observed that key consideration in Gray was that the claimant had been found to be criminally responsible for his conduct, not the degree of personal responsibility which that reflected. The Bench thereby rejected the appellant’s contention and held that, “Gray cannot be distinguished. It involved the same offence, the same sentence and the reasoning of the majority applies regardless of the degree of personal responsibility for the offending”.

Regarding the 2nd issue, the Court while affirming Gray as being Patel compliant” and should be applied and followed in similar cases, held that the policy reasons which support denial of the appellant’s claim include the consistency and public confidence principles identified in Gray. It was further held that, “Principles also include: the public interest in the proper allocation of NHS resources; close connection between her claim and her offence; and the public interest in deterring, protecting the public from and condemning unlawful killing. Although a claimant in the appellant’s position may not be deterred from unlawful killing by being deprived of a civil right to compensation, there may well be a broader deterrent effect in a clear rule that unlawful killing never pays. Any such effect is important given the fundamental importance of the right to life”.

Finally addressing the 3rd issue, the Bench held that the appellant cannot claim damages for loss of liberty or for loss of amenity during her detention in hospital because these losses resulted from the sentence imposed on her by the criminal court. The other heads of loss cannot be recovered either because they result from the appellant’s unlawful killing of her mother.[Ecila Henderson v. Dorset Healthcare University NHS Foundation Trust,  [20203 WLR 1124, decided on 30-10-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Can Medical Termination of Pregnancy be allowed beyond 20 weeks gestation period?

Bombay High Court: A Division Bench of Ujjal Bhuyan and R.I. Chagla, JJ., denied the termination of pregnancy to woman aged 39 years old as the gestation was beyond 20 weeks and medical board’s report had also recommended the same.

Petitioner sought a direction to respondent 2 along with a duly constituted medical board to examine the petitioner — whether the termination of pregnancy of petitioner is possible and further on consideration of the medical report to allow the petitioner to do so.

Petitioner states that she is a married woman and after her examination it was revealed that she was pregnant beyond 20 weeks.

She stated that pregnancy occurred as a result of failure of the contraceptive method and that because of a history of irregular menses, the petitioner did not suspect her pregnancy.

Petitioner claimed that she and her family were in no condition financially and neither was the petitioner who was 39 years old, mentally prepared to be a mother.

As petitioner’s pregnancy has crossed 20 weeks she approached the Court.

Contention placed by the counsel fo the petitioner was that, by placing reliance upon Explanation 1 to Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971:

“Where any pregnancy occurs as a result of failure of any device or method used by any married woman, as has happened in the present case, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”

Women would ideally prefer to prevent an unwanted pregnancy, and by forcing a woman to do continue with the pregnancy represents a violation of the rights of the woman’s bodily integrity.


High Court observed that petitioner was examined by the Medical Board on 20th June, 2020 and according to the board termination of pregnancy cannot be recommended for 2 reasons:

  • that the gestation age is beyond 20 weeks
  • that there are no valid indications for medical termination of pregnancy as per the said Act.

In the case of Sarmishtha Chakraborty v. UOI, (2018) 13 SCC 339

“Supreme Court considered the report of the medical board which revealed that the mother i.e. Petitioner wife would suffer mental injury if the pregnancy was continued and there would be multiple problems if the child was born alive. Medical board had arrived at the conclusion that in a special case of that nature, pregnancy should be allowed to be terminated even after 20 weeks.”

Hence only on limited grounds termination of pregnancy beyond 20 weeks can be allowed by the Court.

Abortion is often the only way out in a very difficult situation for a woman.

It is further held by this Court that if a woman does not want to continue with the pregnancy, then forcing her to do so is in violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.

In the present matter, Court’s opinion was that the reasons for medical termination of pregnancy beyond the statutory limit of 20 weeks as were stated by the petitioner were not valid grounds for medical termination of pregnancy.

Thus in view of the above termination of pregnancy was not allowed. [Rubina Kasam Phansopkar v. State of Maharashtra, 2020 SCC OnLine Bom 765 , decided on 07-07-2020]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., in his own words, departed from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 and allowed termination of 20-weeks pregnancy of a 12-year old rape victim.

The present matter was concerned with the question of allowing the termination of pregnancy of the victim child. Dr Mamata Pradhan, Chairperson of the Medical Board constituted by the Court clarified that termination of pregnancy of 20 weeks bears the serious risk, but it could be done and for that reason, the guardian of the victim girl had to give a qualified consent on fully understanding the consequences and risks involved in such termination.

After elaborate consultations with Dr Pradhan, victim’s mother (her guardian) informed the Court that there is no alternative but to get the pregnancy terminated. A. Bhowmik, Advocate for the petitioners submitted that the court may pass appropriate orders having regard to Supreme Court decision in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339 wherein reproductive choice was recognised to be an inseparable part of personal liberty protected under Article 21.

Having regard to such a situation, the High Court directed Dr Pradhan and her team to commence the procedure of termination of pregnancy of the victim. The Court observed, “Having considered the injury that might torment the mental health of this young girl, this Court has taken the undertaking made by the mother seriously. In the circumstance, the foetus be terminated forthwith, making a departure from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 for responding to the necessity created by human emergency.” The Court also recorded appreciation for B. Choudhary, Public Prosecutor and D. Sarma, Additional Government Advocate for their contribution. The matter was disposed of in the terms above. [Jhuma Roy v. State of Tripura, 2019 SCC OnLine Tri 80, Order dated 08-03-2019]

Conference/Seminars/LecturesLaw School News

The profession of law and psychology share little in terms of how they conceptualize their subject matter- people”. Some would tend to disagree with this statement, suggesting that law and psychology are two separate fields; they are united by their interest in human behavior. Psychology seeks to understand and explain human behavior while law seeks to regulate human behavior. With both fields making assumption about what causes people to act the way they do.
In India laws pertaining to mental health include the protection of Human Rights Act, 1993. Persons with disability Act 2016. The National Trust Act 1999, protection of women Mental Health care Act 2017. A prominent statutory legislation regulating narcotics which has an impact on mental health care is Narcotic Drugs and Psychotropic Substances Act (NDPS) Act 1985. The mental health care Act 2017 provides for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during deliveryof mental health care and services and for matters connected therewith or incidental thereto.
Seminar Objectives:
1. To provide to legal educators psychiatrist, psychologist, academician, professionals and researches for sharing knowledge and experience in dealing with the problems and perspectives of mental health from the view point of legal implications and provisions of mental health care Act 2017.
2. To throw light on the critical issues, case laws reflecting the violation of rights of the children with mental disabilities in the institutions and the community.
3. To bring modifications and amendments in the existing laws, the methods of treatment and rehabilitation of the patients.
1. Promotion of Mental health and prevention of mental disorders under the mental health care Act 2017.
2.Legal issues relating to treatment.
3. Mental health laws and rights.
4. Legal issues rights for mental health in juvenile justice.
5. Emerging trends in mental health.
6. Legal protection from cruel, Inhuman and Degrading treatment.
7. Conventions on the Rights of persons with mental disability.
8. Psychology of child victims of sexual offences and abuse.
9. Mental health and delinquency.
Submission Guidelines:
  • The word limit for abstract is 300-500 words, in times new roman and line spacing of 1.5.
  • The abstract must be accompanied with details of Author and Co-Author along with the title of the paper(Name, Designation Contact details etc.
  • The Abstract must be submitted on or before 15-02-2019.
  • The selection of Abstracts would be intimated on or before 18-02-2019.
  • The Registration process for this seminar shall be done only after the selection of the abstract.
  • The full paper should be of 3000-5000 words (exclusively of foot notes) and needs to be submitted on the paper before 28th February 2019.
  • The Body of submission must be in the times new Roman, with 12 font size and single spacing.
  • The margin of 1 inch in the paper is to be maintained through out the paper.
  • The citation style to be strictly followed is BLUEBOOK (19th Edn).
  • All submissions must be made in dox/docx format only.
  • Any Non-compliance with the prescribed guidelines would lead to prima facie rejection.
  • Co-authorship is allowed upto two authors.
  • Note: No part of the paper should have been published earlier nor should it be under consideration for publication.
  • All submissions should be sent to
  • Selected few papers will be published in a book with an ISBN number.
Important Dates:
  • Deadline for Abstract submission:    15th Feb 2019
  • Intimation of selection of Abstract:     18th Feb 2019
  • Registration:                                        19th Feb 2019
  • Deadline for full paper submission:     3rd March 2019
  • Date of Seminar:                                  7th March
Registration Fee:
  • Research Scholars and students Rs 1,500/-
  • Academicians & professionals:     Rs 2000/-
  • Each of the Co- authors need to register separately.
Mode of Payment:
The above mentioned fees should be paid through DD or NEFT in favor The Registrar DSNLU, Visakhapatnam payable at Andhra Bank.
Account Name: Registrar, DSNLU, VISAKHAPATNAM.
State:  Andhra Pradesh,
Pincode: 530017
IFSC Code: ANDB0002837
Branch Waltair, MICR: 530011020
Branch Code: 000633
Account No: 283710100024089
Case BriefsSupreme Court

Supreme Court: In the petition dealing with the welfare of the mentally ill persons, the Court said that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 postulates a dispensation mandating the appropriate Government to establish institutions for the care of mentally challenged persons and maintenance and management thereof with a view to create an equal opportunity and social security to them.

In the present case, inadequate medical treatment, medical services and access to Doctors, skewed ratio of staff to look after the inmates, overcrowding, poor distribution and consumption of dietary, clothing, bedding and other items and also about the abuses of various kinds to the mentally challenged persons residing in the mental asylums and nursing homes, was highlighted.

The Court said that the Central/State Coordination Committee is primarily responsible for ensuring compliance of the mandate regarding the infrastructure and other facilities to be provided in the Homes established under the 1995 Act and also for overseeing that the same are properly maintained from time to time and comply with the policies and programmes designed for achieving equality and full participation of persons with disabilities. The provisions of the 1995 Act provide for checks and balances for which hierarchy of Authorities have been created to ensure that persons with disabilities are provided with opportunity of full participation and equality in the region. The bench of T.S. Thakur, CJ and A.M. Khanwilkar, J said that the six months’ time frame given to the Central Coordination Committee and the concerned State Coordination Committee is sufficient to enable them to take necessary remedial measures and ensure that deficiencies in the respective institutions established under the 1995 Act are cured within such period.

The Court added that the Secretary of the Union of India, Ministry of Health and Social Welfare shall be personally responsible for monitoring and overseeing the progress and action taken by the Central Coordination Committee in respect of establishments registered under the 1995 Act and under the control of the Central Government. The Court said that similar procedure is to be followed in case of hospitals and nursing homes established under the Mental Health Act, 1987.

The Court asked the Chairperson of the State Coordination Committee to submit compliance report not later than eight months in the Registry of this Court after providing advance copy thereof to the Central Coordination Committee. The Central Coordination Committee shall then submit State/Union Territory wise report with the comments, if any, within ten months in the Registry of this Court. [Reena Banerjee v. Govt. of NCT of Delhi, 2016 SCC OnLine SC 1437, decided on 08.12.2016]