1. This is an unfortunate case. It is one raising questions of general concern, particularly in relation to the weaker section of the society, the women. Medico legal problems are involved to the case. An Advocated married on 31-8-1986 at the Guruvayoor temple. The bridegroom was of a mature age of 30, and the bride, of 24. Understandably, the marriage was attended by many, including members of the Bar and judicial Officers.

2. On 12-9-1986, a petition for divorce was filed. The ground alleged was that the wife was insane at the time of the marriage.

3. The wife was sought to be represented by a next friend and guardian, her father. He filed objections. According to him, the daughter should have been made a party in the original petition she being of sound mind. The husband had not filed any application for appointment of a guardian for the respondent, wife. This deficiency was sought to be cured by filing, subsequently, I.A 774 of 1986 for appointment of a guardian. To that also, objections were filed. The father stated that if the court was satisfied that the respondent needed a guardian, he was willing to be appointed as such.

4. Then came a petition, invoking Section 63 of the Lunacy Act, 1912 read with Order 32 Rule 15 C.P.C, I.A 918 of 1986. The petition sought the issuance of a notice to the wife directing her to appear in person before the court for a personal examination. The Court passed a detailed order on 10-2-1987 directing the wife to appear before the Court on 27-2-1987. The Court made an observation:

“Further proceedings in I.A 774/86 will follow after the appearance of the alleged lunatic.”

5. (It is doubtful whether on the basis of the materials then available before the court, the court was justified in directing appearance of the party before the court for interrogation. Not that the court has no power. That power itself has to be invoked with extreme circumspection, and on very careful evaluation of the materials already on record. However, there is no challenge against that order. It is therefore unnecessary to consider the correctness of that order in greater detail in this case).

6. The wife appeared in the court. Husband's counsel suggested her being kept waiting in the court till after lunch. Apparently, the suggestion that she might be under the influence of drugs for a fairly long time.

7. The wife was interrogated by the learned Judge in Chambers from 3 P.M to 3.25 P.M The court found that the wife had given intelligent answers. There was a further observation that she appeared to be gloomy and unhappy. An order was then passed, directing a report from an expert doctor. It is this order that is challenged.

8. Apart from the mention about the examination in chambers and the general impression about the answers and gloomy appearance, the only other sentence in the order is:

“She admitted that she was treated by a psychiatrist.”

9. The statement is to the effect that she had been treated by one Dr. Unnikrishnan Nair. That was about two to three years back; and for a duration of two to three years; the treatment has been discontinued. The medicine she took was for gaining nervous strength.

10. The question involved in the revision petition is whether the court is justified in directing a party to a case, in such circumstances, for examinations by an expert doctor.

11. Lunacy as a problem, has come up for judicial solution in diverse contexts: some under civil disputes and some in criminal cases. Insanity was a good plea for an accused. Macnaughten's case in very early times, exacted excruciating thoughts on that topic. Insanity and the resulting disability had its impact on civil rights too. A right to elect and to be elected (very valuable in the political field), to be favourably considered for custody of the minor child, and even the ordinary contractual and property rights may considerably be imperilled by confinement proceedings under the Act. It is unnecessary for the purpose of this case to refer to the long discussion on that topic in different settings.

12. In the present case, there has not been any final pronouncement about any person being insane. In a sense, the court has attempted only one step in the elucidation of that issue. Looked that way, it is apparently an innocent and innocuous step. The question is posed: Can anyone feel aggrieved at all by such a step, which may amount only to a collection of an item of evidence on the mental health of a party to the litigation?

13. The substantial provisions on this aspect are those contained in the Indian Lunacy Act, 1912. (Parliament deliberated over and ultimately passed a new law, the Mental Health Act, 1981. It has received the assent of the President on 22-5-1987. The Executive is yet to bring it into force. (Not an unusual phenomenon, these days). All are therefore still to live with the 1912 Act.) Provisions of Order 32 C.P.C particularly Rule 15 thereof would be relevant in the present context. Appointment of a guardian as provided therein would be justified as regards persons adjudged before or during the pendency of the suit, to be of unsound mind. That limb of the provision is not attracted in the present case, for, there is not yet any such adjudication. The latter part of the provision, the court can appoint such a guardian even in respect of persons who are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when sueing or being sued. That stage too has not been reached. An enquiry under the above said provision, must be one which brings out substantial materials justifying the court to take such a drastic step and pass such a serious order.

14. The area is extremely sensitive, in relation to the reputation of a person in the society. Even the slightest slur on sanity has grave consequences, sometimes irretrievable, in relation to the various activities of an individual. It may wreck the prospects of his entrepreneurial activities. It may cast a shadow on his expressions of thought. It may even affect him, psychologically.

15. The genius of law has brought about the presumption of sanity as regards the individuals. Insanity is the exceptional provision. Rigorous are the requirements in relation to the proof to establish that extraordinary situation.

16. Even an interlocutory order, can create unthought of complications as regards the individual subjected to an unusual experience where his very sanity is doubted. It could not be treated as just another medical check up. This distinction between a mental disorder and other bodily ailment has certainly to be borne in mind by the courts of law. Even a seemingly innocuous action like subjecting a party before the court to an examination by an expert medical doctor in relation to his mental capability, is therefore a very serious step, obligating an anxious consideration of all relevant matters and materials.

17. Even a few centuries back, when the mind of man with the mysteries thereof had not been as well exposed to the scientific world as it is today, legal measures had taken extreme care to detail the various formalities that should be undergone in lunacy proceedings. The Lunacy Act, 1890 of England contains very elaborate provisions to ensure that no step is taken without the maximum care and caution. Even a petition has to give materials which would prima facie make out a case of lunacy. Further steps in a petition are taken only on a consideration of such materials.

18. In the present case, there does not appear to have been any materials whatever. Ordinarily, in the absence of materials indicative of anything abnormal or suggestive of a mental incapability, no direction for subjecting such a person to medical examination, should have been issued. If materials prima facie indicate something out of the ordinary, the court may act; even then it will be slow to act on such materials, unless they are subjected to careful scrutiny. In a sense, in view of the adverse civil consequences that may befall the party against whom mental incapacity is alleged, it is only proper that such person is given ample opportunity to challenge or explain away the materials already produced. When the materials are thus challenged, the court would be justified in effecting in meaningful enquiry. That is more to protect the reputation and status of the person against whom an extraordinary state of affairs, namely the mental incapacity is alleged. Only if tangible materials, and acceptable data are available in the course of such enquiry, a court would be justified to enter a finding that the person is incapable of protecting his interest, due to mental infirmity.

19. If the person alleging any mental infirmity against another has not produced such prima facie materials, the court would ordinarily do well to treat the person as a sane one and to decline to enquire further into the matter.

20. The high degree of responsibility on the part of the court in such a situation is indicated by the observation of Tek Chand J. in Muniswar Datt v. Indra Kumari, A.I.R 1963 Punjab 449 when the learned Judge emphasised:

“Court has to be vigilant guardian to see that the legal requirements are fulfilled……………”

21. Passages from scientific books (there are many including some on specialised aspects like “Emotional Problems of Living” by English and Pearson, “Mind, Medicine and Man” by Zibobry, “Annual Survey of Psychoanalysis” by Frosch and Natheniel Ross etc.) may assist the court with useful information. The action to be taken by the court in a given situation is, it may be reiterated, must be based on materials, reliable materials, justifying a serious action.

22. When the impression of the court is that a party has given intelligent answers to the questions, there is absolutely no justification for casting on that party a stigma about mental infirmity or of an incapacity for defence in the proceedings. The total absence of materials as presented in the petition, and the furnishing of intelligent answers during the personal interrogation, should ordinarily put an end to the proceedings under Order 32 Rule 15 C.P.C

23. The fact that a person appears to be gloomy or unhappy, is no good ground to condemn such a person as suffering from a menial infirmity or for dubbing that person as incapable of defending that person in a suit or other legal proceedings. Human life is a complicated spectrum. Different is the approach of men and women towards the various phases of life and to its varying experiences. Some are Micawberian optimists. Some are born valetudinarians. Some have a lingering smile even when faced with the worst of trials or calamities. In sharp contrast are some others. The moment clouds of a trying situation appear somewhere in the horizon, they present a picture of gloom like a faded lilly plucked from its stalk. Lord Campbell recalls how a Frenchman described English as “taking their plesures so sadly.” Nobody would, from that circumstance alone, rush to a rash conclusion regarding the English man. William Ralph Inge in his ‘Lay Thoughts of a Dean’ observed:

“Perhaps it is only shallow natures who never feel the tragedy of existence.”

24. These different manifestations of human mind and personality, are not barometers for the determination of their capacity to defend a suit or an index of mental infirmity.

25. The difficulties in detecting mental infirmity have been indicated by distinguished lay minds and learned psychiatrists. George Turner has recorded one such experience in his “Unorthodox Reminiscences”. He states:

“A friend of mine, a young doctor, went for a long voyage with a lunatic. The people on board ship knew one of them was odd in his head, and treated the doctor as if he were the patient.”

26. The Canadian Bar Review has published in its book review column a classic work on psychological problems by distinguished psychologist. They have related their own experiences, in obtaining admission to a reputed mental hospital by an initial pretention about abnormal mental behaviour. During the subsequent long periods of their observation they behaved as perfect human beings, as indeed they were. Yet at the time of their discharge, they could not obtain a certificate about their possessing perfect mental condition.

27. According to an Editor-writer, “a good many of the casual correspondents of a periodical are evidently downright mad” Inability to accommodate the changes, according to Samuel Butler, can expose one being branded as a mad man; for, he says:

“All our lives long, every day and every hour, we are engaged in the process of accommodating ourselves to changes and unchanged surroundings; living, in fact, is nothing else than this process of accommodation; when we fail in it a little we are stupid, when we fail flagrantly we are mad, when we suspend it temporarily we sleep, when we give up the attempt altogether we die.”

(See the Way of All Flesh by Samuel Butler, Chapter LXIX, page 417-18)

28. The ‘Eccentric Club’ of England, probably reflects the English man's sense of humour. There is a recent publication detailing the eccentricities of men and women, eminent in their own fields.

29. Commenting on the book Law and Psychiatry in the Canadian Context by David N. Weistub, a reviewer said:

“The totality of our knowledge and the totality of recognized principle in this area are housed much more in published articles than in case-law, case-law commentary, or legislation.”

30. A substantial supply of useful information in this area was obtained by the efforts taken in that behalf by a Commission appointed by the Supreme Court to look into and study cases of some mental hospitals in India. The cases study cover so may persons. Academic writers have made useful analysis of the data so collected. (See Amita Danda's article on “The Mental Health Bill of 1981 - A New Deal for the Menially 111?” (1984) 2 SCC J-8. She had taken much pains to devote needed attention on the afflictions of women, in particular).

31. Existence of many a mental disorder like epilepsy, schizophrenia, paraonia and psych pathic has been duly taken note of in advanced countries. Elaborate arrangements have been made to take tender care of the sufferers. Judicial decisions rendered in the past would indicate that the proceedings under the Lunacy Act have been quite often abused by unscrupulous husbands or other relatives. Some of the Courts have given alerting warnings to be exceedingly careful in dealing with such sensitive issues. The necessity to ensure that Courts should not be an instrument of oppression against helpless women, cannot be overemphasised. The message can be noted, even without deep academic studies of recent specialised publications like P. Shesler's ‘Women and Madness’ or K. Millett's Sexual Politics or Robert T. Roth Judilk Lerner's “Sex-Based Discrimination in the Mental Institutionalisation of Women.” A study of the working of the Mental Health Act in England will give useful information to the administrators when the country is passing through tensions of different types in very many areas of life. Even a complaint about ill-treatment of mental patients, had led to a feat of investigative journalism about the working of the Rampton Hospital. It resulted in 14 trials in which five had been convicted initially, though ultimately acquitted. The case is reported in R. v. Bagshaw, 1984 1 All ER 971.

32. The further advances in the medical science and in the legal provisions get reflected in the Mental Health Act, 1983 in England. How ‘hospital orders’ imposing any restrictions on a person found to be suffering from paycho pathic disorder are subjected to scrutiny at various levels is discernible from the provisions of the Act. Under the Act, a Mental Health Review Tribunal presided over by a Judge is empowered to review the ‘Hospital Orders’. Section 72 of the English enactment presents an iterative process under which the Tribunal is enabled to consider various options in relation to the patient. Some of the decisions dealing with cases arising under the Act are:

(1) Mahon v. Air New Zealand Ltd., (1984) 3 All ER 201,

(2) Bone v. Mental Health Review Tribunal, (1985) 3 All ER 330.

(3) R. v. Vaccine Damage Tribunal, ex Loveday (1984) Times, 10 November.

(4) R. v. Mental Health Review Tribunal, (1985) 3 All ER 699.

33. Some of these illustrations are sufficient to emphasise the point that mere observation of gloom in the face or other peculiar conduct, would be totally inadequate, even to suspect a person as having mental infirmity. As emphasised earlier, even the fact that a court has a lurking suspicion about the mental capacity of a person, might cause incalculable harm to the reputation and the future life of the person so suspected. It is for that reason that the courts have to carry with them the caution at every stage of the proceedings either under the Lunacy Act or under Order 32 Rule 15 C.P.C The circumstances and materials in the case are totally insufficient and inadequate even to have a suspicion for a cause under Section 67 of the Lunacy Act, or a direction for examination by a Doctor. They fall short of the requirements justifying a continuation of the exercise of an enquiry into the mental condition of the party.

34. It is useful to recollect in this context that even in the case of a person who had been treated, and for long for schizophrenia, this Court declined to grant a decree for divorce. (See Daniel v. Sarala, I.L.R 1976 (2) Kerala 357) The court observed:

“There are degrees of illness in schizophrenia. The methods of treatment devised by modern science serves to arrest, if not cure, the disease and to retain the personality of the patient at status quo level that social recovery is possible is admitted by modern medical science.”

35. In such a situation the mere fact that at one time a doctor had been consulted for nervous ailments, is no ground to doubt the mental capacity of the person concerned. This is particularly so, when at the time of the petition and at the time of personal interrogation, there was no indication whatever about the answers being unintelligent or unintelligible.

36. The interrogation by the Court has also to be done with delicate care and extreme caution. It is very difficult to lay any hard and fast rule in that regard. Sankaran J. gave the caution in Balakrishnan… v. Kalliyani…., 1957 K.L.T 268 at 272:

To treat a person as one incapable of protecting his own interests by reason of unsoundness of mind or mental infirmity, is a very serious matter and it is in recognition of the seriousness of the matter that the legislature has insisted on a proper inquiry being made into that matter to enable the court to come to a conclusion about the mental condition of the person concerned.”

37. For the purpose of the enquiry, it would be profitable for the Court to equip itself with the background of the parties and of the litigation and the role the court has to play in relation to such an interrogational exercise. It would be inadvisable and improper for the court to arrogate for itself the role of a cross-examining counsel. As has been indicated in judicial decisions including R. Lingaraj v. Parvathi, AIR 1975 Madras 285, the purpose of questioning, is not to find out the alertness of the mind, the quickness of the perception, or the ability to effect mental calculations or the like. The following passage from the above decision is particularly notable:

“However low the intelligence quotient of a simpleton may be, his mental capacity is referable to an integrated and sound mind, while the mental factor of a person of unsound mind can have reference only to a mind affected by severe congenital subnormality or to a disintegrated ox deranged or dishevelled mind. It is in this perspective, the ability of a person with unsound mind to take care of himself and manage his affairs has to be assessed. A person of weak intellect may not have the capacity to look after himself and his affairs in a prudent or acceptable manner, but nevertheless, the capacity of his mind to manage himself and his affairs cannot be called into question.”

38. Even in the choice of questions, much consideration of thought will have to be bestowed before the person present is asked to answer. It must be realised that the atmosphere of the court, and even the Chamber of the judicial officer may not be felt as a congenial atmosphere to many. (The court halls and Judge's Chambers may not be as bad as in 18th century England, described by Dickens as a ‘dog's hole’; our judicial officers may not present, (as did the Lord Chief Justices of England with their wigs and robes) the picture of an ‘awful personage like a wax work’. Yet, the fact remains that to many, it may not be a comfortable atmosphere) This is particularly so in the case of persons less advanced socially and culturally-Women are likely to have greater nervousness as many of them may not have been exposed to the rough-and-tumble of a hectic lite, as in the case of man. These observations have become necessary particularly in the context of the question which reads:

(Will the doctor laugh?) The question addressed to a young lady, who had been only recently married, was inappropriate. The question in that situation would ordinarily cause an awkward embarrassment. Judicial officers should take care to eschew such questions even when a party is questioned for the purposes connected with Order 32 Rule 15 C.P.C

39. In view of the paucity of materials indicating mental ill-health and in the light of the positive assurances given to the court by the person herself answering the questions intelligently, the court had no jurisdiction to continue the harassment by a direction for further medical examination. That order has necessarily to be vacated. I do so. In the light of the above conclusion, the court below will proceed with the original petition, treating the respondent therein as a person capable of defending herself in the proceedings before the court.