Introduction: X vs. X (CRL. REV. P. 30/2023, CRL. M. A. 665/2023 (Stay), CRL. M. A. 1509/2023 & CRL. M. A. 3966/2023) was decided on 13^th July 2023. The Court held that Section 105 of the Mental Healthcare Act, 2017 (henceforth ‘the Act’) was mandatory in nature and creates a statutory right in favor of the person claiming mental illness under Section 2(s) of the Act. The competent Court must refer it to the concerned Board appointed under the Act as it cannot be prejudicial to the Petitioner. It can also not be prejudicial to the Respondent as Section 3(s) of the Act states that the person claiming mental illness cannot be assumed to be of unsound mind.

Background: The marriage between the Petitioner and Respondent was solemnized in 2011 as per Hindu law.

The Petitioner was directed to pay Rs, 1,15,000/- per month to the Respondent and their minor daughter from the date of filing of the petition under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (henceforth ‘DV Act’) by the Metropolitan Magistrate, Mahila Court-05, Tis Hazari Courts, Delhi (henceforth ‘MM’).

This was challenged by the Petitioner through an appeal before the Sessions Court, Tis Hazari Courts, Delhi while the Respondent filed an execution petition before the MM.

The Petitioner sought exemption stating that he has been suffering from Bipolar Affective Disorder (henceforth ‘BPAD’), Generalized Anxiety Disorder, depression and anxiety and was on regular medical supervision.

The MM ordered arrest warrants against the Petitioner on 28.10.2023. This was challenged by the Petitioner before the Additional Sessions Judge-02, Tis Hazari Courts, Delhi (henceforth ‘ASJ’) which dismissed the appeal by the order dated 23.12.2022.

This revision petition was filed by the Petitioner seeking to set aside the order dated 23.12.2022 passed by ASJ and upholding the order dated 28.10.2023 passed by the MM.

Legal Provisions: Section 23 of the DV Act provides for the power to grant interim and ex parte orders to the Magistrate if satisfied that prima facie there is the likelihood that the Respondent has committed, is committing or may commit an act of domestic violence.

Section 2(s) of the Mental Healthcare Act provides for the definition of ‘mental illness’ which includes “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality…”

Section 105 of the Act provides that in a judicial process, if proof of mental illness is produced and challenged by the other party, the Court shall refer its scrutiny to the concerned Board which shall after examination, itself or through a committee of experts, submit its opinion to the Court.

Section 106 of the Act provides that a mental health practitioner or medical practitioner shall not discharge any duty or function not authorized by this Act or specify or recommend any medicine or treatment not authorized by the profession.

Submissions of the Petitioner: The Petitioner submitted that he was suffering from BPAD and relied on Section 105 of the Act and Bhavya Nain vs. High Court of Delhi (2020 SCC OnLine Del 2525) to show that it comes within the ambit of Section 2(s) of the Act. The Petitioner also relied on Section 106 of the Act.

The Petitioner submitted that the ASJ’s order dated 23.12.2022 ignores the medical reports of a certified psychiatrist and other doctors from 2013 based on a medical document issued by Dr Renuka Chhabra (Family Physician and Gynecologist) which stated that the Petitioner is suffering from acute gastroenteritis with repeated vomiting, diarrhoea, weakness, and anxiety.

Further, the Respondent has not disputed that the Petitioner is suffering from BPAD as recorded by MM’s order dated 28.10.2022. Even the FIR, by the Respondent, records that the Petitioner is suffering from a mental illness/depression and was on medication for it and the same was conveyed to the Respondent before marriage.

Submission of the Respondent: The Respondent submitted that the Petitioner filed an income affidavit before the MM stating that he was not suffering from any disease or illness. Even in the Petitioner’s appeal against the MM’s order directing for payment, there was no objection to mental illness taken and only in the execution petition filed by the Respondent, the Petitioner stated that he was suffering from mental illness.

The reports annexed by the Petitioner were from eight years ago and the reports themselves stated that the assessment was inconclusive.

It was argued that the certificates produced by the Petitioner cannot be used to defeat or frustrate the legal rights of the Respondent and their minor daughter.

It was submitted that it was evident from his first income affidavit filed in 2017 that the Petitioner’s plea was mala fide as he declared himself a proprietor of ‘Hakim Hari Krishna Lal Shafakhana’, however in the second affidavit, he claimed to have transferred it to his father in 2016 to defeat and frustrate the legal right of the Respondent and their minor daughter.

The Respondent relied on S. Vanita vs. Deputy Commissioner (2022 SCC OnLine SC 1023) and Ravinder vs. Govt. of NCT of Delhi & Ors. (W.P. (CRL) 3317/2017) to state that a harmonious interpretation of the provisions of the DV Act and the Act must be adopted.

It highlighted that Bhavya Nain vs. High Court of Delhi as relied on by the Petitioner had observed that a person suffering from a disability covered under the Act can sit in the Delhi Judicial Service Examination for earning his livelihood.

Issues: Whether under Section 105 of the Act, Court should have exercised its powers?

Judgment: The Court observed that the Mental Healthcare Act, 2017 repealed the Mental Health Act, 1987 and relied on Ravinder Kumar Dhariwal and Anr. vs. Union of India (2023 2 SCC 209) to observe that the Act is a special Act and Section 120 of the Act gives it an overriding effect on other laws for the time being in force.

It relied on Vijay Dhanuka and Ors. vs. Najima Mamtaj and Ors. [(2014) 14 SCC 638], Lalita Kumari vs. Govt. of U.P. [(2014) 2 SCC 1] and May Geroge vs. Special Tahsildar and Ors. [(2010) 12 SCC 98] and observed that a bare reading of Section 105 of the Act shows its mandatory nature given the purpose and nature of the enactment.

It held that ‘the purpose of Section 105 of the Act is only with respect to an enquiry with regard to a person alleged to have a mental illness or not’. Further, it ‘creates a statutory right in favor of any person who claims to have mental illness as provided for under Section 2(s) of the Act. The mandatory nature of the said provision doesn’t leave any discretion with the competent Court in case such a claim is made during judicial process pending before it’. This mandatory provision requires the Court to refer to the concerned Board and it cannot prejudice the said claim before making appropriate directions under the provision.

Conclusion: The Court perused the MM’s order dated 28.10.2022, ASJ’s order dated 23.12.2022, the report of Cosmos Institute of Mental Health and Behavioral Sciences (henceforth ‘CIMBS’), Delhi Psychiatry Centre from 2014 which recorded ‘BPAD, Currently Moderately Depressive Episode’ and the report of Fortis Memorial Research Institute, Gurugram from 2022 and 2023 reflecting BPAD and concluded that the MM and ASJ did not take into account the report of CIMBS and only considered the report by Dr. Renuka Chhabra.

Further, Section 105 of the Act does not lay down any specific requirements of a document indicating a person suffering from mental illness. The said provision creates a right in favor of a person who claims to suffer from mental illness as defined in Section 2(s) of the Act. The Petitioner claims he is suffering from BPAD, Generalized Anxiety Disorder, depression, and anxiety. The Respondent’s contention that the Petitioner has not raised the issue in prior proceedings is not an estoppel with regard to his statutory right as provided in the Act.

Section 3(5) of the Act provides that the determination of a person’s mental illness shall not imply or be assumed that the person is of unsound mind unless he has been declared as such by the competent Court. Thus, determination in terms of Section 105 of the Act cannot be prejudicial to the interest of Respondent.

Thus, the orders dated 28.10.2022 and 23.12.2022 by the MM and ASJ respectively were set aside.

– Lakshita Bhati