Pongiammal vs Kuttiyammal

Wallace, J.—The question that arises in this Revision Petition is one of some difficulty. The counter-petitioner claimed maintenance from the

petitioner u/s 488 of the Criminal Procedure Code before the Sub-divisional Magistrate of Gobichettipalayam. 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.

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.

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 u/s 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 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.

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 the 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.

I have emphasised above that the Court must find not only that he is a lunatic but that he is prevented by his 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.

It is true that to postpone further proceedings indefinitely postpones also the wife''s prospect of relief u/s 488, but this seems to be 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.

I reverse the order under revision and direct the Magistrate to rehear the case in the light of the above remarks.