1. The question that arises in this revision petition is one of some difficulty. The counter-petitioner claimed, maintenance from the petitioner, under Section 488 of the Criminal Procedure Code, before the Sub divisional Magistrate of Gobichettipalaiyam. It was pleaded on the petitioner's behalf that he is insane and that therefore the Divisional Magistrate ought to have followed the procedure laid down in Chapter XXXIV of the Criminal Procedure Code. The Magistrate on 9th January 1924, on a petition by the petitioner's mother, apparently held the petitioner to be insane and appointed the mother as his guardian ad litem but, when the case came into Court on 24th January 1924, the Magistrate considered from his own observation of the petitioner that he was not insane or incapable of understanding the proceedings. He then, without cancelling his order appointing the mother as the guardian ad litem, heard the case and passed an order that the counter-petitioner was entitled to separate maintenance.
2. On the petitioner's behalf it is claimed that he, is really insane and incapable of understanding the proceedings and that therefore the Magistrate's proceedings are void.
3. It may be pointed out at once that the Magistrate had no power under the Criminal Procedure Code to appoint a guardian ad litem for a lunatic. The proceedings under Section 488 may be quasi civil but they are also criminal and are wholly governed by the provisions of the Criminal Procedure Code alone. The Magistrate made no sort of enquiry and got no medical opinion on the insanity of the petitioner but, merely because the petitioner 'stood speechless' before him, concluded apparently that his previous information that he was insane was erroneous. Such a casual settlement of the important question whether the petitioner was insane or not indicates to my mind that the Magistrate merely thought it best to come to that conclusion because he did not know how to treat the case if he came to any other conclusion.
4. Clearly such a perfunctory enquiry will not do. It is the Magistrate's duty to hold a judicial enquiry into the sanity of the petitioner, and put him, if necessary, under medical observation. If, as a result of that enquiry, he is satisfied that the petitioner is sane and capable of understanding the proceedings, then that matter is simple ; but if he concludes that the petitioner is insane and not capable of understanding the proceedings, the question is what is the proper procedure to be followed, and that is a matter of some difficulty. The procedure laid down in Chapter XXXIV will not strictly apply because the petitioner, under the amended Section 488, is not an 'accused' person. The word 'accused' used in the old Section 488 has been avoided in the new section, evidently with deliberation. However, the provisions of Section 464 at least are those which a Court of equity and good conscience would naturally follow ; that is, if it finds that the petitioner is insane and incapable of understanding questions put to him and giving rational answers, it must postpone further proceedings until it is satisfied that the petitioner is capable of so understanding the proceedings. This is all the more necessary in a maintenance case as the counter petitioner in such a case is an important witness on his own behalf and has the right of offering terms to the petitioner therein ; and, if he cannot understand the proceedings and cannot give evidence on his own behalf, the Court is not able to hear both sides of the case and cannot, therefore, come to a judicial conclusion. To proceed to pass an order in such a case would have the result, for example, that, if the Court makes the order against a lunatic for maintenance and the lunatic does not obey it, he is liable to imprisonment, a result which no one can reconcile with justice, equity and good conscience.
5. I have emphasised above that the Court must find not only that he is a lunatic but that he is presented by Ms lunacy from understanding the questions put to him and making rational answers to them. This is with regard to the provisions of Section 118 of the Indian Evidence Act.
6. It is true that to postpone further proceedings indefinitely postpones also the wife's prospect of relief tinder Section 488; but this seems an inevitable result of the omission of the legislature to legislate for such a case. She is not without remedy as she can sue for maintenance in the Civil Court.
7. I reverse the order under revision and direct the Magistrate to re-hear the case in the light of the above remarks.