2017 PLP 346 (YLRN)

MUHAMMAD FARRUKH IRFAN KHAN, J.

The petitioners assail the order dated 3.11.2011 of the learned Sessions Judge, Sargodha whereby husband of petitioner No.1 and father of petitioner No.2, namely, Muhammad Iqbal has been referred to Medical Superintendent, Punjab Institute of Mental Health, Lahore to obtain his opinion as to whether he is mentally insane or lunatic.

2. Brief facts of the case are that Muhammad Boota, respondent No.2 filed a petition under section 29 of the Mental Health Ordinance, 2001 for appointment of guardian of the property of Muhammad Iqbal, on the ground of lunacy. He alleged in the said petition that the said Muhammad Iqbal, who is his paternal uncle has no male child and his only daughter and wife are trying to misappropriate his landed property. The learned Sessions Judge, Sargodha after recording statement of the said Muhammad Iqbal passed the impugned order. Hence, the instant petition.

3. Learned counsel for the petitioner contends that respondent No.2 has no locus standi in view of the mandate of law given in section 15 of the Mental Health Ordinance, 2001 as such his petition is not maintainable; that the learned trial Court has illegally and unlawfully proceeded with the matter and is taking an exercise which is totally against law; that the learned trial Court while passing the impugned order has failed to comprehend the true spirit and import of sections 15 and 29 of the Ordinance ibid, which are quite distinct from each other; that the learned trial Court could not proceed further in the matter without first deciding application of the petitioner filed under section 15 of the Ordinance ibid; that as petitioner No.2 has obtained a decree for dissolution of marriage against respondent No.2 he has become inimical towards the petitioners as such his petition before the learned Sessions Judge is not free from the element of mala fide and ulterior motive of grabbing property of Muhammad Iqbal.

4. Conversely, learned counsel for respondent No.2 has supported the impugned order by contending that from the statement of Muhammad Iqbal, it is apparent that he is suffering from mental disorder as such for supervision of his landed property a guardian/manager must be appointed; that the learned trial Court has not committed any illegality by passing the impugned order as ascertaining the mental condition of the said Muhammad Iqbal is necessary for appointment of his guardian; that respondent No.2 is real nephew of the said Muhammad Iqbal and being a close relative is entitled to seek the desired relief from the trial Court under section 29 of the Mental Health Ordinance, 2001.

5. Arguments heard. Record perused.

6. A bare reading of section 15 and 29 of the Mental Health Ordinance, 2001 (hereinafter referred to as "the Ordinance") shows that these are two distinct provisions of law and true import cannot be understood, construed or interpreted without bearing in mind the context in which these are made part of the Statute. Section 15 of the Ordinance falls in Chapter III under the Head "Assessment and Treatment" and conjunctive reading of sections 7 to 15 reveals that this Chapter deals with admission of a patient for assessment of his mental health and treatment by providing him Psychiatric Facility. Section 15 provides that for admission to Psychiatric Facility an application on a prescribed form is required to be presented by the husband or wife of the patient. On the contrary, section 29 of the Ordinance deals with judicial proceedings for appointment of guardian of person and manager of the property of the mentally disordered person by the Court of Protection. According to this section any of the relatives of the patient suffering from mental disorder may present an application to the Court of Protection for directing an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs. However, such application can be filed after obtaining consent in writing of the Advocate-General of the Province concerned. There is nothing on the record to show that respondent No.2 had ever obtained consent in writing by the Advocate General, Punjab prior to filing application under section 29 of the Ordinance. This requirement of law cannot be dispensed with. The learned Sessions Judge has failed to take into account this aspect of the case. The petition of respondent No.2 thus suffered from inherent defect of having not competently filed. The same should have been dismissed outrightly.

7. Besides the above said legal position qua maintainability of the petition a perusal of statement of Muhammad Iqbal leads this Court to come to a conclusion that there was no justification for referring him to Medical Superintendent, Punjab Institute of Mental Health, Lahore to obtain his opinion as to whether he is mentally insane or lunatic. What persuaded this Court in forming this view is statement of the alleged patient, recorded by the learned Sessions Judge which is reproduced below: "My name is Muhammad Iqbal. My father name is Muhammad Bakhar. My mother name is Taleh. I have two brothers, one step and the other real. Both of them had died. I have four sisters. One is alive and the other have expired. I never went to get education in the school. However, I pray `Nimaz'. In my prayer I just recite the name of `Maula Karim' and `Allah"Allah'. I have a little problem in my tongue that is why I cannot pray like others. I am wearing iron bangles because I am 'Malang' of 'Haq Bahoo". I have sold my land. I have given my land to Boota on lease but he eat my land (sold it away). I have no relations with Boota. Boota has committed fraud with me. My daughter is sitting in the court who has been divorced by Boota. They have no children after their wedlock. In the morning I probably eat `Daal' 'Saag'. Boota drinks alcohol. Arifoo resident of Mauza Chaniwala filed a suit for land against me. Hayat lambardar is a president of our country. The shops in front of the courts are mine. Probably my daughter got married with Boota about a year back. However, I gave her all the dowry etc. I have only one daughter. My wife is good. She cooks for me eggs, tea and bread. She does not cook chicken for me. My son-in-law namely, Boota wants to kill me. Boota came to my residence with two other men and wanted to fire shots at me. He has also many times dug the ground and buried "Taveez" by manner of which my wife lost a lot of blood. However, no ill came to me. My daughter recites Quran on her own. She prays 'Nimaz' and she washes his clothes. She also washed my dress which I am wearing today in the court. My wife's name is Sakina. She cook food for me but does nothing else because she is an old lady. My wife is not old she is just poor. My wife and my daughters are my family and I would like to go to my house with my family i.e. my wife and daughter and not any one else. I beg pardon. I would not like to go to Boota (at this juncture he held his both ears with his hands). I had my tractor, wooden timber (which levels the land). I do not trust Boota for any thing. I gave my daughter's hand to Boota because my nephew "Bhanja" Noor begged me to get them married." From a careful perusal of all the answers given by Muhammad Iqbal in reply to questions put to him by the learned Sessions Judge during the inquiry it is evident that he said nothing to hold him an abnormal or mentally disordered person. Even the observations made by the learned Sessions Judge in his order dated 26.10.2011 support the case of the petitioners. The observations so recorded by the learned Court of Protection are reproduced hereunder: "

2. During questions generally put to him by this Court, he has been able to answer them fairly well with little distractions and irresponsible responses, which devotes that he is a little bit imbalanced and mentally handicapped. However, he knows clearly the feelings of love and hatred. He understood well whom to love and whom to hate. He is well aware of the hand which feeds him and is caring for him and which hand he should not trust for himself.

3. All these things endorsed the fact that he is well feed and well kept by his wife and daughter, whom he loves despite his mental condition. He is also aware that the petitioner who has divorced his daughter due to this reason he has a lot of ill feeling for him. He also distrusts him because allegedly he felt very bad when the petitioner sold his 'sohaga'. Regarding his awareness about his property he has answered that he does have property. However, it is the petitioner who sold his property. He has total distrust on the petitioner and his intention." When a person is found capable of recognizing his relations, feeling sentiments of love and hatred, showing his grief and resentment over loss of property, conscious of his disability in saying prayer like others due to some problem in his tongue, well aware about social life and customs prevalent in the society, displaying acute hatred against the petitioner due to dishonestly selling his land, his level of intelligence may be assessed less than an ordinary prudent person but by no stretch of imagination he may be termed as an insane or lunatic. I am surprised to note that the learned Court of Protection has not given any reason or ground for referring the alleged patient for ascertaining his mental health by the Psychiatrist.

8. It is on the record that respondent No.2 prior to filing application under section 29 of the Ordinance instituted a petition under section 491, Cr.P.C. for recovery of Muhammad Iqbal alleging therein that his uncle Muhammad Iqbal, who is a person of unsound mind had been illegally detained by Muhammad Riaz, Mushtaq, Azam and Muhammad Nawaz. The said application was dismissed on the statement of Muhammad Iqbal that he was not under any detention and living with his wife and daughter with his free will and consent. From this fact it appears that respondent No.2 is interested in getting Muhammad Iqbal declared as insane and lunatic just to prevent him from living with his wife and daughter, who are taking his care in a proper and befitting manner which is even noticed by the learned Sessions Judge. Such a conduct shown by respondent No.2 when seen in the context that he is ex-husband of petitioner No.2, who has got divorce from him through a decree of the Court, his mala fide and ulterior motive in filing petition under section 29 of the Mental Health Ordinance, 2001 cannot be ruled out. Even otherwise, in any case if guardian of Muhammad Iqbal was required to be appointed in presence of his wife and daughter, respondent No.2 had no right to come forward and seek his appointment as guardian.

9. In view of the foregoing reasons; this petition is allowed and the impugned order dated 3.11.2011 is set-aside. ZC/S-67/L Petition allowed.