1. This appeal has been filed against an order of the lower court directing the summons to issue to the alleged lunatic for appearance before court on 8-3-1976 under S. 41 of the Indian Lunacy Act.
2. The respondent herein filed a petition, O. P. 8 of 1975, under S. 38 of the Act seeking an order of inquisition alleging that her husband Rajappan is a lunatic and that he is of unsound mind and incapable of managing himself and his affairs. The said petition is being contested by the appellant herein who is the mother of the said Rajappan. The appellant has filed her counter in the said petition stating that Rajappan became subject to hallucinations soon after his marriage with the respondent, that after the respondent left him to lead a life of her own, after getting a divorce from him according to custom in the community, Rajappan became subject to first of depression losing interest in life, that he answered questions if in proper mood, and would not like to engage in conversation with anyone, but that from these it may not be possible to consider him insane within the meaning of the definition of the word in the Indian Lunacy Act. she has also stated that after the respondent left Rajappan, he is being looked after by her and that she has been appointed as guardian-ad-litem in suits filed against him by her brother as well as outsiders.
3. In the said petition, the respondent filed I. A. 291 of 1975, seeking an order under S. 41 of the Indian Lunacy Act, for the medical examination of the alleged lunatic Rajappan to find out his mental condition as on date. The said application was opposed by the appellant on the ground that Rajappan is not a lunatic, that therefore, she is not in a position to produce the lunatic and that, in any event, any order for production of the alleged lunatic can only be after an order of inquisition is made under S. 38 of the Act. It was also contended by the appellant that the application is not maintainable by the respondent as she is not a relative who is entitled to file an application under the Lunacy Act.
4. The court below considered the objections raised by the appellant and held that it had the power to act under S. 41 of the Act before in order for inquisition is made under S. 38, but that in the circumstances of this case before the alleged lunatic is directed to be produced before the medical officer for examination as to his mental condition, it would be necessary to find out prima facie his mental condition by the court. In this view, it directed the respondent to take out summons to the alleged lunatic for appearance before the court on 8-3-1976. The validity of the above order has been challenged in this appeal by the appellant.
5. The main contention of the learned counsel for the appellant is that unless an order of inquisition is made under S. 38 of the Act, on the materials already available before court no order under S. 41 of the Act could be made either for the appearance of the alleged lunatic or for his production for the purpose of personal examination by the court or by any medical officer from whom the court may require to have a report of the mental capacity and condition of the alleged lunatic. It is also contended by the learned counsel that the lower court is in error in proceeding to exercise its power under S. 41 of the Act, before deciding the objection raised by the appellant that the respondent cannot maintain the petition under S. 38 of the Act as she is not a relative of the alleged lunatic, she having obtained a divorce as per the custom in the community. The question is whether the said contentions urged by the learned counsel are tenable.
6. As already stated, though the respondent sought an order for the production of the alleged lunatic for purposes of medical examination, the court has chosen only to direct the issue of summons for the appearance of the alleged lunatic. The court has not ordered the appellant, who is admittedly looking after the alleged lunatic, to produce him in court and therefore, she cannot be said to be aggrieved against the order of the lower court. The case of the appellant as set out in the counter affidavit in the main petition is that he is not a lunatic, that he is capable of managing his own affairs and that, therefore, she cannot be directed to produce him before court. Perhaps she can be said to be aggrieved only if the court has directed her to produce the alleged lunatic. As the court has merely directed the issue of summons to the lunatic to appear before the court, the appellant cannot take exception to that order, even if she is looking after the interest of the alleged lunatic. The fact that the order of the lower court was passed in her presence will not entitle her to file an appeal against that order. I am, therefore, of the view that this appeal filed by the mother against the order of the lower court directing the issue of summons to the alleged lunatic is not maintainable.
7. Even assuming that the appeal is maintainable, the contention advanced by the learned counsel for the appellant that the power under S. 41, can be exercised only after an order of inquisition is made under S. 38 does not appear to be sustainable. A close reading of S. 41 indicates that the power thereunder can be exercised at any time after an application for inquisition is filed under S. 38 of the Act. The heading of the S. 41 is powers of court in respect of attendance and examination of lunatic. The attendance of the lunatic in court may be necessary either before or after the order of inquisition. There is no justification for restricting its operation to a stage subsequent to an order of inquisition. If such were the intention of the Legislature, the operation of the section would have been restricted by using appropriate language. Therefore, there appears to be no basis for the contention that S. 41 can be invoked by court only after an order of inquisition is made.
8. The learned counsel for the appellant would, however, rely on the following decisions in support of his submissions. In Md. Yaqub v. Nazir Ahmed ILR 42 All 504: (AIR 1920 All 80) a Division Bench, while dealing with the procedure to be followed in the matter of inquisition as to the mental condition of an alleged lunatic, expressed the view that before an inquisition is ordered there ought to be a careful and thorough preliminary inquiry, that the Judge concerned ought to satisfy himself that there is a real ground for an inquisition, and that an application for inquisition should ordinarily be supported by affidavit or by examination on oath of the applicant, and by a medical certificate of some doctor as to the condition of the alleged lunatic. I do not see how this decision can come to the aid of the appellant. What all that decision says is that before an inquisition is ordered, the court must, on a preliminary inquiry satisfy itself that there is a real ground for inquisition and that the court cannot order inquisition without any prima facie material. The said decision does not deal with the stage at which the power under S. 41 could be invoked. On the other hand, the learned Judges seem to take the view that if the medical certificate of some doctor as to the condition of the lunatic is not forthcoming, it would be very desirable that the Judge should seek some personal interview with the alleged lunatic not with a view to forming a final opinion as to his real condition but to satisfy himself in the ordinary way in which a layman can do, that there is a real ground for supposing that there is something abnormal in his mental condition which might bring him within the Lunacy Act. This decision indicates that the court can direct personal attendance of the alleged lunatic in court for purposes of enabling it to come to a conclusion as to whether an order of inquisition is justified or not.
9. In Munwar Sultan v. Shamsunnissa Begum AIR 1924 Cal 658, a Division Bench considered the scope of S. 38 of the Lunacy Act, and held that as the power under S. 38 to order an inquisition into the state of health, the state of mind and the state of general capacity of a person affects the person so prejudicially that it ought not to be used except upon a careful consideration of evidence. Even here, the scope of S. 41 was not considered and the learned Judges were concerned only with the question as to what are the circumstances under which an order of inquisition could be passed under S. 38. It is true an argument was advanced before the learned Judges that the exercise of the power conferred under S. 41 could arise only when an inquisition has been ordered. But they have restrained from expressing any opinion on that question by merely stating that it is arguable.
10. Saraj Basini Debi v. Mohendranath AIR 1927 Cal 636 was a decision of another Division Bench wherein it was held that the first thing which has to be done by the court upon an application under S. 38 of the Act is either with or without notice to the lunatic to carefully consider whether the case is one which calls for an order directing an inquisition and if it is considered that the case calls for an order of inquisition, to record an order to that effect and it is only thereafter steps have to be taken under Ss. 40, 41 and 42 of the Act. The above decision is relied on by the learned counsel for the appellant as indicating that S. 41 comes into operation only after an order of inquisition. However, I am not able to read the said decision as laying down that S. 41 can come into play only after an order of inquisition is made. As already stated, S. 41 can be invoked either before or after the order of inquisition is made. Before the order of inquisition, the power under S. 41 can be exercised by court to have an interview with the alleged lunatic with a view to ascertain his mental condition. After the order of inquisition, S. 41 can be invoked for the conduct of the inquisition proceedings. The observations of the learned Judges in that case seem to proceed on the basis that even before the order of inquisition notice can be issued to the lunatic. In this case, as already stated, the court has directed the issue of summons to the alleged lunatic for purposes of initial enquiry for finding out whether the case warrants an order of inquisition and the issue of such summons to the alleged lunatic for the purpose of preliminary inquiry has not been ruled out by the said decision.
11. In Narasamma v. Ramanaidu , Govinda Menon J. while dealing with the scope of S. 62 of the Lunacy Act, expressed the view that an order directing an inquisition into a man's state of mind is very serious thing and that such an order is intended by the statute to be a judicial determination carefully made upon adequate materials, and on the facts of that case directed examination of the lunatic by a medical officer. The said decision also does not rule out the possibility of the exercise of the power under S. 41, before an order of inquisition is made. Thus all the decisions relied on by the learned counsel for the appellant do not support the stand taken by him that S. 41 can come into play only after an order of inquisition is made under S. 38 of the Act.
12. The learned counsel for the respondent has referred to a decision in Bai Chanda v. Ramanlal Patel, ILR (1965) Guj 302 which is directly in point. In that case the question as to when the power under S. 41 could be invoked camp up for consideration specifically. After considering all the relevant provisions of the Act, Bhagwati J., as he then was, held that the court hearing an application under S. 38 or S. 62 of the Indian Lunacy Act has power under S. 41 to make an order requiring the alleged lunatic to attend the court for the purpose of being personally examined by the court with a view to satisfy itself whether there is a prima facie case which requires to be investigated before making an order of inquisition under S. 38 or S. 62, that the language of S. 41 is wide enough to include exercise of power by the court at any stage whether prior or subsequent to the making of an order for inquisition, and that the applicability of that section cannot be confined only to the stage subsequent to the making of an order of inquisition. In that case, almost an identical contention as is now put forward by the learned counsel for the appellant was put forward before the learned Judge and the learned Judge rejected the contention, with the following observations:
"There is nothing in S. 41, which even remotely suggest that the Court can require the attendance of the alleged lunatic for the purpose of his personal examination only after the order if inquisition is made. The language of S. 41 is wide enough to include exercise of power by the court any stage in the course of the proceedings initiated under S. 62. If the intention of the legislature were that the court should have power to require the attendance of the alleged lunatic for the purpose of his personal examination only after the making of an order of inquisition, the Legislature would have used appropriate language confining the exercise of the power to the stage subsequent to the making of an order of inquisition. But the language used by the Legislature is general in its terms and it would be contrary to all canons of constricted manner and confine it applicability only to one stage of the proceedings, namely, that subsequent to the making of an order of inquisition."
13. With respect, I agree with the view expressed by the learned Judge in that case.
14. I have to, therefore, hold that the order requiring the alleged lunatic to attend Court for purpose of being personally examined by the court can be made by the court under S. 41 of the Act even before making an order of inquisition. The order of the lower court cannot, therefore, be taken exception to.
15. On the question as to whether the application filed by the respondent is maintainable, the respondent has asserted that she is the wife of the alleged lunatic. It is true the appellant has stated in her counter affidavit that there has been a divorce as per the custom in the community. But that has been disputed by the respondent. Therefore, this contested matter has to be decided finally only in the main petition and that cannot be considered at this interlocutory stage. That question, is, therefore, left open.
16. The civil miscellaneous appeal is, therefore, dismissed. There will be no order as to costs.
17. Appeal dismissed.