EKTA ABBOT vs ANKUR ABBOT
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 22.11.2023
Judgment pronounced on: 19.02.2024
+ CONT.CAS(C) 467/2022, CM APPL. 48151/2023
EKTA ABBOT
….. Petitioner
Through: Mr Rajiv Bajaj and Mr Karan
Prakash, Advs.
Petitioner in person.
versus
ANKUR ABBOT
….. Respondent
Through: Mr Kapil Madan and Mr Gurmukh
Singh, Advs.
CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH
J U D G M E N T
: JASMEET SINGH, J
1. This is a petition seeking initiation of contempt proceedings for violation of order dated 31.03.2022 passed by learned MM, West District, Tis Hazari Court, Delhi in MC 79 of 2017, titled Ekta Abbot v. Ankur Abbot. The operative portion of the order reads as under:
15. In view of the above discussion, taking into consideration the fact that monthly expenditure of minor child is on a higher side taking into consideration her medical condition and therapies which the child ought to receive, respondent no.1 is directed to pay Rs.75,000/- pm as interim maintenance for petitioner and Rs.40,000/- pm as interim maintenance for the minor daughter (thus total interim maintenance of Rs.1,15,000/- per month) from the date of filing of the petition till the final disposal of this case. The above said interim maintenance shall be towards food, rent, clothing, education, special needs of the child, household and other necessary expenses all inclusive. The above said interim maintenance amount shall be adjustable to the amount, if any, the petitioner or the minor daughter are getting towards maintenance of themselves from the respondent no. 1 in this proceeding or from any other proceedings.
16. Let the monthly maintenance be deposited in the account of the petitioner on or before 10th of each month from the date of filing of the application and some arrears be also deposited every month. Petitioner shall be entitled to claim maintenance till further orders or remarriage and the minor child shall be entitled to claim maintenance till further orders or till she is legally entitled to claim the same. Arrears of maintenance be, cleared within six months from today. The observation made in the order shall not tantamount to any findings on merits of this case.
2. Since the same was not done, the present contempt petition has been filed.
3. It is stated by the learned counsel for the petitioner that the respondent is in arrears of around Rs. 39,80,000/- as on 01.12.2023.
4. The brief facts for adjudication of the present case are that the marriage between the parties was solemnized on 07.11.2011 as per Hindu Rites and Ceremonies and a girl child, namely Shanaya, was born out of the wedlock between the parties.
5. The petitioner on account of atrocities and cruelty committed by the respondent left the matrimonial home along with the daughter and filed a Domestic Violence petition, i.e MC 79 of 2017 against the respondent. The respondent vide order dated 07.09.2018, voluntarily agreed to pay Rs. 40,000/- per month as ad-interim maintenance w.e.f. October 2018. Thereafter, the petitioner filed an application for enhancement of ad-interim maintenance and the respondent filed an application for reduction of the same. The said applications were decided by the abovesaid order of 31.03.2022.
6. The learned trial court granted the respondent 6 months time to clear arrears of the maintenance, however the respondent has not done the same.
7. The petitioner submits that the respondent is a successful business tycoon handling the operations of the sole proprietorship of TakatShafakhana and Hakim Kishan Lal Shafakhana which have been in business for around 125 years.
8. The petitioner submits that it is not that the respondent lacks funds but lacks the intention to comply with the directions passed by the learned trial court. It is stated that the income of the respondent has increased manifold however the respondent continues to make it difficult for the petitioner to receive maintenance.
9. It is further submitted that the daughter of the parties suffers from Social Communication Disorder and has heavy medical expenses, however the respondent is intentionally making petitioner run from pillar to post for getting funds for the minor daughter who requires specialised care.
10. The respondent submits that the present contempt petition is being used as a weapon for the purpose of executing a decree for which law provides appropriate procedure. He relies on RN Dey and Ors. v. Bhagyabati Pramanik and Ors. (2000) 4 SCC 400 to state that invocation of contempt jurisdiction should not be done where alternate remedies are available. The operative portion reads as under:
7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court’s dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no wilful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified.
11. The respondent further submits that he is suffering from mental disorder, namely Bipolar Affective Disorder and Generalised Anxiety Disorder, which falls under the ambit of Section 2(s) of the Mental Healthcare Act, 2017. Section 2(s) of the Mental Healthcare Act, 2017 reads as under:
2 (s)mental illness means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence;
12. The same has been admitted by the petitioner in (i) FIR no. 0054, PS Patel Nagar and (ii) order dated 28.10.2022 in EX CRL No. 115/2022 :
(i) FIR no. 0054, PS Patel Nagar
.., Ankur was in a state of depression and turned to me for emotional support. I was projected that Ankur was under medication for depression and I, in turn, got carried away by his aforesaid representations and rendered him full emotional support
..
(ii) Order dated 28.10.2022 in EX CRL No. 115/2022
At this stage Ld. counsel for JD has advanced the argument that as per Section 105 and 116 of Mental Health Care Act.2017. the present proceedings are liable to be adjourned on the ground that ID is a patient of mental illness and the same has been challenged by DH. However, Ld. counsel for DH fairly concedes that he has not challenged the mental illness of JD, but at the same time states that JD is liable to comply with the execution orders of the court and is liable to pay the due amount to DH, which is now to the tune of more than Rs. 70 Lacs
..
13. It is the case of the respondent that this admission by the petitioner excludes him from proceedings under the Contempt of Courts Act, 1971 in view of the bar as contained under section 116 of the Mental Healthcare Act, 2017.
14. He further relies on the judgment dated 13.07.2023 passed by this court in Crl.Rev(P) 30/2023, whereby the order dated 23.12.2022 passed by learned ASJ in CA No. 302/2022 upholding the order dated 28.10.2022 passed by learned MM in Ex.Crl. No. 115/2022 issuing warrants of arrest against the respondent, was set aside on account of the respondents statutory right under the Mental Healthcare Act, 2017. The operative portion of the order reads as under:
23. Section 105 of the said Act creates a right in favor of a person who claims to suffers from mental illness as defined under Section 2(s) of the said Act. The present petitioner claims to be suffering from Bipolar Affective Disorder, Generalized Anxiety Disorder, depression and anxiety.
24. So far as the contention of learned counsel appearing on behalf of the respondent with regard to the fact that the petitioner did not raise the issue of his mental illness to in any other prior proceedings pending before the parties cannot act as an estoppel with regard to his statutory right as provided for in the said Act.
25. It is further pertinent to note Section 3(5) of the said Act states that determination of a persons mental illness alone shall not imply or be assumed that the person is of unsound mind unless he has been declared as such by a competent Court. Thus, determination in terms of Section 105 of the said Act cannot be prejudicial to the interest of respondent.
26. In view of the above, the present petition is allowed. Orders dated 28.10.2022 and 23.12.2022 passed by learned Metropolitan Magistrate and learned Additional Sessions Judge, respectively, are set aside.
15. The respondent further submits that it is an established principle that every husband who is Able-bodied must pay for the wifes maintenance, but a husband who is not able-bodied cannot be forced to pay the maintenance.
16. The respondent submits that the petitioner has failed to prove the alleged wilful disobedience without reasonable doubt, as required in law. It is stated that the respondent has been continuing to make payment of Rs. 40,000/- towards maintenance even though the respondent is not in the financial state to provide the same. He states that so far an amount of Rs. 54,81,954/- has been paid to the petitioner, hence there is no wilful disobedience rather the respondent is arranging funds despite having all his bank accounts seized by the learned MM vide order dated 02.08.2022. The operative portion of the order dated 02.08.2022 reads as under:-
Ld. counsel for DH makes an objection that the stay has been denied by Ld. Sessions court and the mediation has failed on 25.07.2022 and no amount has been paid to DH apart from Rs.40,000/- each month. There is no order of any court giving liberty to JD to deposit any amount of Rs.40.000/- only every month. Order of this court order dated 02.07.2022 was very clear that JD has to comply with the said order.
Ld. counsel for JD only makes the submission that matter is seized by
Ld. Sessions court and without prejudice he is already paying Rs.40,000/- every month.
Ld. counsel for DH prays that bank account of JD be attached. Heard.
Perused.
JD has failed to appear today despite passing clear directions that coercive steps shall be taken against him if no stay order is passed and he fails to pay regular monthly maintenance. Accordingly. let notice be sent to concerned Bank Managers of following banks with directions to attach the savings bank account of JD/Ankur Abbot after verification of his particulars and to submit the report alongwith statement of balance in his account, on the NDOH:-
.
17. The petitioner on the other hand refutes the same and submits that the interim maintenance order dated 31.03.2022 passed by the learned MM was challenged by the respondent before the learned ASJ in Appeal, i.e CA/114/2022 which was dismissed and the order of the learned MM was upheld by the learned ASJ. The petitioner states that in the said appeal no ground/averment of mental illness was raised by the respondent.
18. The petitioner submits that the order dated 31.03.2022 has been upheld and there is no modification, stay or alteration in favour of the respondent. In this view, the respondent is legally obliged to comply with the interim maintenance order.
19. The petitioner submits that that this court in the order dated 13.07.2023 in Crl.Rev.P. 30/2023 stated that the determination of a persons mental illness alone shall not automatically imply/assume that the person is of unsound mind unless he has been declared as such by a competent court and the court only remanded back the matter to Ld. Mahila Court to decide the application for Section 105,116 and 120 of Mental Health Care Act, 2017 which has been now dismissed.
20. The petitioner has relied on judgment of this court in Bhavya Nain v High Court of Delhi, 2020 SCC OnlineDel 2525 wherein a bipolar person was allowed to perform duties of a judicial officer to state that the respondent cannot be exempted from performance of his legal obligations of maintaining his wife and child, especially since he continues to conduct his social and business life in a regular manner.
21. The petitioner further submits that the respondent is wilfully flouting orders of this court since it is after the registration of the FIR in the year 2015 that the respondent ostensibly left the proprietorship concern, i.e Hakim Kishan Lal ShafaKhana. The same was also observed by the learned MM in the order dated 31.03.2022. The operative portion reads as under:
12. Petitioner has also filed various documents to show that respondent no.1 owns several URLs, blogs and treatments promoted by him on international platform. A website portal (at pg 188 and 189) shows that respondent no.1 is the proprietor of Hakim Hari Kishan Lal Shafakhana and Takat Shafakhana. His Linkedin profile (at pg 192) also shows himself as proprietor of Hakim Hari Kishan Lal Shafakhana. At pg 221, respondent no.1 and his parents are shown to be directors of Sanchit Leasing Pvt. Ltd. and at pg 224 it reflects information about respondent no.1 that he is listed in two companies i.e. Ankur Medico Pvt. Ltd. and Sanchit Leasing Pvt. Ltd. However, in the income affidavit respondent no.1 has only disclosed being the director in Ankur Medico Pvt. Ltd and during the course of arguments admitted to be proprietor of Takat Shafakahana. Thus, respondent no. 1 has tried to hide his source of income and it is prima facie proved that he is proprietor of Takat Shafakahan and Hakim Hari Kishan Lal Shafakhana and is also director in Ankur Medico Pvt. Ltd and Sanchit Leasing Pvt. Ltd. As discussed hereinabove, he has also tried to hide his actual income by hiding the current accounts of his businesses. He has single account and joint bank accounts with his father and mother having credits and transfers of lacs of rupees to and from various entities including Rishi Raj Films, Vinod, Takat and Hakim Hari Kishan Lal Shafakhana whereas he claims that he has no nexus with Hakim Hari Kishan Lal Shafakhana. He has also sold away both of his cars after filing of this petition and no explanation has come forth. He has transferred huge amount of around Rs.7-8 lacs to a real estate as alleged by petitioner that he has invested in it but respondent no.1 has filed a judgment dated 20.02.2019 passed by Hon’ble High Court of Delhi while explaining that with the order of the court they were liable to pay that amount to Devansh Real Estate. He has been showing losses in Takat Shafakhana and showing that he is earning only around Rs.23,000/- pm whereas his savings bank accounts are receiving huge money from various entities reflecting distribution of his income to evade tax liability and on the other hand he has withhold his current bank account statements. He says that he has no nexus with Hakim Hari Kishan Lal Shafakhana but his savings bank account reflects huge transfers to and from Hakim Hari Kishan Lal Shafakhana. Suddenly after filing of this petition his bank account shows negligible balance in contradistinction to his earlier bank balance and transactions which prima facie points to the fact that he has been trying to evade his legal responsibility to maintain his wife and child. He has also withhold his ITs for the period 2017-18, 2018-19 and 2019-20 without any plausible explanation. He has maintained his stand of having no nexus with any other entity than Takat Shafakhaana but no plausible explanation has come forth regarding the numerous documents filed by petitioner showing that respondent no.1 owns Hakim Hari Kishan Lal Shafakhana and is also director of Sanchit Leasing Pvt. Ltd. Also, he shows his income to be Rs.23,000/-pm only yet he has Rs.6.60,000/- to give loan to his friends/family and not to maintain his wife and daughter. Also, on one hand he says that he does not know whether his own child is suffering from social communication disorder and puts petitioner in a place to prove it with documents. while on the other hand he says that he earlier gave a statement to voluntarily pay an amount of Rs.40,000/- pm for their maintenance looking at the condition of the child which is self-contradictory. Also, he himself gave statement to voluntarily pay petitioner and minor child Rs.40,000/- pm and later seeks to reduce the maintenance amount on the ground that his father was paying him and now he cannot afford to pay such a huge amount. His contention that a private Company is a separate entity and its income cannot be taken income of respondent no.1, is misplaced on law as respondent no.1 being Director in two Companies also gets remuneration from the profits of the Company, which he has hidden from the Court. His contention that his income cannot be calculated on the basis of income of his forefathers is also misplaced in view of the fact that petitioner has prima facie shown photographs, advertisements etc. that the brand value has a legacy of more than 120 years and is reputed in national and international market, and all the family members are engaged in the same business but under different names and also they have common bank. accounts in which the transactions from their businesses are shown, also respondent no.1 has admitted during the course of arguments that he is using his savings account for the purpose of business. Thus, it is clear that when all the family members are carrying on business in the same field under different names and are transacting from a common account, the income of respondent no.l cannot be bifurcated to the detriment of petitioner and the minor child by claiming that only the business of respondent no.1 is going in losses whereas that of his father is flourishing. Thus, finding no other option, court is bound to take an adverse inference against respondent no.1 for hiding his actual source of income and his actual income. Thus, taking into view the documents filed by petitioner and the profit and loss account of both Takat Shafakhana and Hakim Hari Kishan Lal Shafakhana, their international market base, lacs of transactions in all of his bank accounts with no plausible explanation, hiding of his current accounts and also the fact that he is also a director of two other companies, his monthly income is assessed to be at least Rs.3,00,000/-.
22. It is submitted by the petitioner that the respondent is concealing bank accounts wherein he is securing large chunks of money secured from the sole proprietorship firms, which has received numerous accolades on both the domestic and international stage. It is also stated that the Respondent has recently purchased a plot admeasuring about 800 Sq. yards. in Patel Nagar for about Rs. 60 Crores, which is a clear indication of the income and status of the Respondent and his family.
23. The petitioner submits that this conduct of the respondent in failing to pay arears of interim maintenance amounts to contempt of court, reliance is placed upon Sonali Bhatia v Abhivansh Narang, (2022) 287 DLT 35. The operative portion of the judgment reads as under:
34. It has been time and gain reiterated by the Supreme Court that the orders of Courts have to be obeyed unless and until they are set aside in appeal/revision. The onus is on the party to establish and satisfy the court that the order is null and void, and therefore not executable or enforceable. However, in the present case, the respondent has withdrawn his appeal against the order of the Family Court. Thus, there is no question of his establishing that the order passed by the Family Court granting maintenance to the petitioner, or the order passed by this Court in the respondent matrimonial appeal was null and void. Even otherwise, they cannot be considered as null and void, since they were passed by Courts of competent jurisdiction after hearing the respondent herein. The Respondent has not shown any regard towards the majesty of the court by obeying its orders. He has shown no remorse or regret for non-compliance of the aforesaid orders. If there is wilful disobedience to any judgment, decree direction, order writ or other process of a court, or wilful breach of undertaking given to the court, the contempt court shall take note of such violation, that needs to be punished. The wilful disobedience by the contemnor undermines the dignity and authority of the Courts and outrages the majesty of law. In Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, the Court has delineated the contours for initiating civil contempt action. The Court observed thus:
12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is wilful. The word wilful introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one’s state of mind. Wilful means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct.
35. The conduct of the respondent taken note of hereinabove shows that he has tried to act over smart with the Court by concealing his true income and expenditure, and the channels into which his incomes are flowing, and the manner in which they have been utilised. He has not come clean despite grant of repeated opportunities. His conduct shows that he his defiantly disobeying the orders of the Court despite being called upon to comply with them repeatedly.
..
37. We, therefore, impose a fine upon the respondent of Rs. 2,000/-. We punish him with simple imprisonment for a term of 3 months.
24. I have heard the submissions raised on behalf of the parties and perused the material on record.
25. The following issues arise for consideration of this court:-
a. Whether the provisions under the Mental Healthcare Act, 2017 are applicable to the respondent?
b. Whether the petitioner having filed an execution petition can maintain the present contempt petition?
c. Whether the respondent is guilty of contempt for violating order dated 31.03.2022 passed by the learned MM court?
26. The first and foremost question is whether the provisions of Mental Healthcare Act, 2017 will apply to the respondent?
27. The respondent is suffering from Bipolar Affective Disorder and Generalised Anxiety Disorder and has filed medical reports and prescription in this regard. It is the case of the respondent is that he is not bound to pay interim maintenance, as directed, on account of his mental condition.
28. The respondent relies on section 116 of the Mental Healthcare Act, 2017 to state that there is a bar on the jurisdiction of this court to proceed with the contempt proceedings preferred against the respondent. Section 116 is reproduced as under:
116. Bar of jurisdiction.No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the Board is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
29. A plain reading of the above section shows that a bar on jurisdiction of civil courts has been envisaged under the Act. However, it is pertinent to note that such bar has been imposed on any proceedings or any matter for which the Authority or the Board is empowered to determine under the Act. It does not in any way restricts the jurisdiction of the civil courts in any other proceedings under any other law.
30. The Mental Healthcare Act, 2017 is a Special Act formulated for the protection and promotion of rights of persons suffering from mental illness. The Act establishes Authorities, i.e Central Mental Health Authority and State Mental Health Authority, and the Medical Review Board for the purpose of safeguarding the rights of persons with mental illness. In this view, the jurisdiction of civil courts have been restricted to the extent of powers granted to determine such issues to the Board and Authority under the Act. The relevant sections coding the powers and functions of the Authority or the Board are reproduced below:-
2. Definitions-
(c) Authority means the Central Mental Health Authority or the State Mental Health Authority, as the case may be;
(d) Board means the Mental Health Review Board constituted by the State Authority under sub-section (1) of section 80 in such manner as may be prescribed;
43. Functions of Central Authority.(1) The Central Authority shall
(a) register all mental health establishments under the control of the Central Government and maintain a register of all mental health establishments in the country based on information provided by all State Mental Health Authorities of registered establishments and compile update and publish (including online on the internet) a register of such establishments;
(b) develop quality and service provision norms for different types of mental health establishments under the Central Government;
(c) supervise all mental health establishments under the Central Government and receive complaints about deficiencies in provision of services;
(d) maintain a national register of clinical psychologists, mental health nurses and psychiatric social workers based on information provided by all State Authorities of persons registered to work as mental health professionals for the purpose of this Act and publish the list (including online on the internet) of such registered mental health professionals;
(e) train all persons including law enforcement officials, mental health professionals and other health professionals about the provisions and implementation of this Act;
(f) advise the Central Government on all matters relating to mental healthcare and services;
(g) discharge such other functions with respect to matters relating to mental health as the Central Government may decide: Provided that the mental health establishments under the control of the Central Government, before the commencement of this Act, registered under the Mental Health Act, 1987 (14 of 1987) or any other law for the time being in force, shall be deemed to have been registered under the provisions of this Act and copy of such registration shall be furnished to the Central Authority.
(2) The procedure for registration (including the fees to be levied for such registration) of the mental health establishments under this section shall be such as may be prescribed by the Central Government.
55. Functions of State Authority.(1) The State Authority shall
(a) register all mental health establishments in the State except those referred to in section 43 and maintain and publish (including online on the internet) a register of such establishments;
(b) develop quality and service provision norms for different types of mental health establishments in the State;
(c) supervise all mental health establishments in the State and receive complaints about deficiencies in provision of services;
(d) register clinical psychologists, mental health nurses and psychiatric social workers in the State to work as mental health professionals, and publish the list of such registered mental health professionals in such manner as may be specified by regulations by the State Authority;
(e) train all relevant persons including law enforcement officials, mental health professionals and other health professionals about the provisions and implementation of this Act;
(f) discharge such other functions with respect to matters relating to mental health as the State Government may decide:
Provided that the mental health establishments in the State (except those referred to in section 43), registered, before the commencement of this Act, under the Mental Health Act, 1987 (14 of 1987) or any other law for the time being in force, shall be deemed to have been registered under the provisions of this Act and copy of such registration shall be furnished to the State Authority.
(2) The procedure for registration (including the fees to be levied for such registration) of the mental health establishments under this section shall be such as may be prescribed by the State Government.
78. Proceedings before Board to be judicial proceedings.All proceedings before the Board shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860).
80. Proceedings before Board.(1) The Board, on receipt of an application under sub-section (1) of section 85, shall, subject to the provisions of this section, endeavour to hear and dispose of the same within a period of ninety days.
(2) The Board shall dispose of an application
(a) for appointment of nominated representative under clause (d) of sub-section (4) of section 14;
(b) challenging admission of a minor under section 87;
(c) challenging supported admission under sub-section (10) or sub-section (11) of section 89, within period of seven days from the date of receipt of such applications.
(3) The Board shall dispose of an application challenging supported admission under section 90 within a period of twenty-one days from the date of receipt of the application.
(4) The Board shall dispose of an application, other than an application referred to in sub-section (3), within a period of ninety days from the date of filing of the application.
(5) The proceeding of the Board shall be held in camera.
(6) The Board shall not ordinarily grant an adjournment for the hearing.
(7) The parties to an application may appear in person or be represented by a counsel or a representative of their choice.
(8) In respect of any application concerning a person with mental illness, the Board shall hold the hearings and conduct the proceedings at the mental health establishment where such person is admitted.
(9) The Board may allow any persons other than those directly interested with the application, with the permission of the person with mental illness and the chairperson of the Board, to attend the hearing.
(10) The person with mental illness whose matter is being heard shall have the right to give oral evidence to the Board, if such person desires to do so.
(11) The Board shall have the power to require the attendance and testimony of such other witnesses as it deems appropriate.
(12) The parties to a matter shall have the right to inspect any document relied upon by any other party in its submissions to the Board and may obtain copies of the same.
(13) The Board shall, within five days of the completion of the hearing, communicate its decision to the parties in writing.
(14) Any member who is directly or indirectly involved in a particular case, shall not sit on the Board during the hearings with respect to that case.
82. Powers and functions of Board.(1) Subject to the provisions of this Act, the powers and functions of the Board shall, include all or any of the following matters, namely:
(a) to register, review, alter, modify or cancel an advance directive;
(b) to appoint a nominated representative;
(c) to receive and decide application from a person with mental illness or his nominated representative or any other interested person against the decision of medical officer or mental health professional in charge of mental health establishment or mental health establishment under section 87 or section 89 or section 90;
(d) to receive and decide applications in respect non-disclosure of information specified under sub-section (3) of section 25;
(e) to adjudicate complaints regarding deficiencies in care and services specified under section 28;
(f) to visit and inspect prison or jails and seek clarifications from the medical officer in-charge of health services in such prison or jail.
(2) Where it is brought to the notice of a Board or the Central Authority or State Authority, that a mental health establishment violates the rights of persons with mental illness, the Board or the Authority may conduct an inspection and inquiry and take action to protect their rights.
(3) Notwithstanding anything contained in this Act, the Board, in consultation with the Authority, may take measures to protect the rights of persons with mental illness as it considers appropriate.
(4) If the mental health establishment does not comply with the orders or directions of the Authority or the Board or wilfully neglects such order or direction, the Authority or the Board, as the case may be, may impose penalty which may extend up to five lakh rupees on such mental health establishment and the Authority on its own or on the recommendations of the Board may also cancel the registration of such mental health establishment after giving an opportunity of being heard.
86. Independent admission and treatment.(1) Any person, who is not a minor and who considers himself to have a mental illness and desires to be admitted to any mental health establishment for treatment may request the medical officer or mental health professional in charge of the establishment to be admitted as an independent patient.
(2) On receipt of such request under sub-section (1), the medical officer or mental health professional in charge of the establishment shall admit the person to the establishment if the medical officer or mental health professional is satisfied that
(a) the person has a mental illness of a severity requiring admission to a mental health establishment;
(b) the person with mental illness is likely to benefit from admission and treatment to the mental health establishment;
(c) the person has understood the nature and purpose of admission to the mental health establishment, and has made the request for admission of his own free will, without any duress or undue influence and has the capacity to make mental healthcare and treatment decisions without support or requires minimal support from others in making such decisions.
(3) If a person is unable to understand the purpose, nature, likely effects of proposed treatment and of the probable result of not accepting the treatment or requires a very high level of support approaching hundred per cent. support in making decisions, he or she shall be deemed unable to understand the purpose of the admission and therefore shall not be admitted as independent patient under this section.
(4) A person admitted as an independent patient to a mental health establishment shall be bound to abide by order and instructions or bye-laws of the mental health establishment.
(5) An independent patient shall not be given treatment without his informed consent.
(6) The mental health establishment shall admit an independent patient on his own request, and shall not require the consent or presence of a nominated representative or a relative or care-giver for admitting the person to the mental health establishment.
(7) Subject to the provisions contained in section 88 an independent patient may get himself discharged from the mental health establishment without the consent of the medical officer or mental health professional in charge of such establishment.
31. The Honble Supreme Court in Ravinder Kumar Dhariwal v UOI, (2023) 2 SCC 209, has analysed the mental healthcare framework through the years and observed that in sharp difference to the Mental Healthcare Act, 1985, the present Act of 2017 recognises the legal capacity of persons suffering from mental illness and confers an agency of personhood upon them. It was observed that a person suffering from mental illness will not be presumed to be incapable to make decisions and their illness will not be seen as an impairment. The operative portion of the judgment reads as under:-
61. The Mental Health Act, 1987 (the 1987 Act) was enacted, as the Preamble states, to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their property and affairs. This Act replaced the Indian Lunacy Act. The 1987 Act was a huge transformative leap from the Lunacy Act which did not confer any right to live a life of dignity to mentally ill persons. However, even the 1987 Act did not confer any agency or personhood to mentally ill persons. The Act did not provide a rights-based framework for mental disability but was rather restricted to only establishing psychiatric hospitals and psychiatric nursing homes, and administrative exigencies of such establishments. Under the Act, the mentally ill person was defined as a person who is in need of treatment by reason of any mental disorder other than mental retardation.
65. The 2017 Act provides a rights-based framework of mental healthcare and has a truly transformative potential. In stark difference from the provisions of the 1985 Act, the provisions of the 2017 Act recognise the legal capacity of persons suffering from mental illness to make decisions and choices on treatment, admission, and personal assistance. Section 2(1)(o) includes within the definition of mental healthcare diagnosis, treatment, and rehabilitation. Section 4 of the Act states that every person with mental illness shall be deemed to have the capacity to make decisions regarding their mental healthcare and treatment if they are able to understand the relevant information, and the reasonably foreseeable consequence of their decision. Sub-section (3) of Section 4 states that merely because the decision by the person is perceived inappropriate or wrong by others, it shall not mean that the person does not have the capacity to make decisions. The recognition of the capacity of persons living with mental illness to make informed choices is an important step towards recognising their agency. This is in pursuance of Article 12 of CRPD which shifts from a substitute decision-making model to one based on supported decision-making. [ Explanation 1 to Article 12 CRPD by UN CRPD.]
66. Article 12 of CRPD reads as follows:
12. Equal recognition before the law.(1) States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
(2) States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
(3) States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
(emphasis supplied)
67. Explanation 1 to Article 12 issued by the United Nations Committee on the Rights of Persons with Disabilities discusses the universal legal capacity where all persons inherently possess legal capacity regardless of disability or decision-making skills. [ Explanation 1 to Article 12 CRPD by UN CRPD.] They may however be provided with support (and not substitution ) to exercise their legal capacity. This shift from the substituted legal capacity model to the supported legal capacity model is important for two reasons. It recognises the agency held by disabled persons; and adopts a social model of disability. It has been recognised by various scholars that the 2017 Act is one of the most robust rights-based frameworks to tackle mental health concerns.
68. The Indian mental healthcare discourse has undergone a substantial and progressive change. Persons living with mental illness were considered as lunatics under the Indian Lunacy Act, 1912 and were criminalised and subject to harassment. There was a moderate shift in the mental health discourse with the repeal of the Lunacy Act, 1912 and the enactment of the 1987 Act. However, the transformation in the mental health rights framework was profound when the 2017 Act was enacted since it placed a person having mental health issues within the rights framework.
32. Further, the respondent can only seek aid of the Mental Healthcare Act, 1971 if an affirmative determination under section 3 of Mental Healthcare Act, 1971 of his/her mental illness and/or unsoundness of mind is made. Section 3 is reproduced as under:-
3. Determination of mental illness.(1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organisation) as may be notified by the Central Government.
(2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.
(3) Mental illness of a person shall not be determined on the basis of,
(a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;
(b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.
(4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person’s mental illness.
(5) The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.
Emphasis supplied
33. Under the ambit of Section 3 (4) of the Mental Healthcare Act, 2017, any past treatment or hospitalisation in a mental health establishment shall not by itself determine the person’s future or present mental illness. The respondent has relied on past mental health records or prescription to show proof of his condition, however the same by itself will not be sufficient and a declaration under section 3(5) and/or sections 102, 115 of the Mental Healthcare Act, 2017 is required. The sections 102 and 105 are reproduced below:-
102. Conveying or admitting person with mental illness to mental health establishment by Magistrate.(1) When any person with mental illness or who may have a mental illness appears or is brought before a Magistrate, the Magistrate may, order in writing
(a) that the person is conveyed to a public mental health establishment for assessment and treatment, if necessary and the mental health establishment shall deal with such person in accordance with the provisions of the Act; or
(b) to authorise the admission of the person with mental illness in a mental health establishment for such period not exceeding ten days to enable the medical officer or mental health professional in charge of the mental health establishment to carry out an assessment of the person and to plan for necessary treatment, if any.
(2) On completion of the period of assessment referred to in sub-section (1), the medical officer or mental health professional in charge of the mental health establishment shall submit a report to the Magistrate and the person shall be dealt with in accordance with the provisions of this Act.
105. Question of mental illness in judicial process.If during any judicial process before any competent court, proof of mental illness is produced and is challenged by the other party, the court shall refer the same for further scrutiny to the concerned Board and the Board shall, after examination of the person alleged to have a mental illness either by itself or through a committee of experts, submit its opinion to the court.
34. The Co-ordinate Bench of this court, on the same defence raised by the respondent in Crl.Rev.P. 30/2023, by way of order dated 13.07.2023, set aside the orders of learned MM and learned ASJ issuing warrants of arrest against the respondent. However, the court observed that determination of mental illness/unsound mind of a person cannot be assumed or implied without declaration by a competent court under section 3(5) of the Mental Healthcare Act, 2017.
35. For this purpose, the respondent approached the learned MM by way of an application u/s 105, 116 and 120 of the Mental Healthcare Act, 2017 seeking stay of the execution proceedings on the ground of mental illness. The learned MM has dismissed the said application. The dismissal order has not been challenged by the respondent.
36. In this view, since the plea of the respondent seeking such declaration has already been dismissed and the matters challenging the interim maintenance order dated 31.03.2022 has also been dismissed, the petitioner is well within her rights to seek contempt action against the respondent.
37. Even otherwise, the Honble Supreme Court in Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, has distinguished mental illness and mental retardation. The court has opined that there are various degrees of mental disabilities, and people suffering from mild, moderate or borderline mental retardation are capable in living in normal social conditions and the law should respect the same. The operative portion reads as under:-
40. We must also be mindful of the varying degrees of mental retardation, namely, those described as borderline, mild, moderate, severe and profound instances of the same. Persons suffering from severe and profound mental retardation usually require intensive care and supervision and a perusal of academic materials suggests that there is a strong preference for placing such persons in an institutionalised environment. However, persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions even though they may need some supervision and assistance from time to time.
41. A developmental delay in mental intelligence should not be equated with mental incapacity and as far as possible the law should respect the decisions made by persons who are found to be in a state of mild to moderate mental retardation.
38. For the said reasons and in view of the above discussion, I am of the view that the bar contained in the section 116 of the Mental Healthcare Act, 2017 is not a blanket bar to civil courts exercising their jurisdictions and in the absence of any declaration by any court under Mental healthcare Act, 2017 the provisions of the said Act are not applicable to the respondent.
39. Therefore in these circumstances, contrary to the submissions made by the respondent, the present contempt proceedings against the respondent are not barred under the Mental Healthcare Act, 2017.
40. The next question that arises for consideration of this court is whether the petitioner having filed an execution petition can maintain the present contempt petition?
41. I have already taken a stand on the said issue in the judgement dated 15.02.2024 in Cont.Cas(C) 233/2022 titled Vimal Kirti Gupta v. Rajan Gupta. Relevant portion reads as under:-
36.
The Honble Supreme Court in Urban Infrastructure Real Estate Fund v. Dharmesh S. Jain [(2022) 6 SCC 662] has considered the observations made in R.N. Dey (supra). The relevant portion reads as under:-
19.2. R.N. Dey v. Bhagyabati Pramanik, wherein this Court held that the weapon of initiating contempt proceedings could not be used for execution of a decree or implementation of an order. That is, a court should not invoke contempt jurisdiction, where alternate remedies are available to secure the terms of an order. We are mindful of the fact that contempt proceedings should not be of the nature of execution proceedings in disguise. However, we hold that the case law cited supra would not come to the aid of the contemnor herein as the facts of the said case were significantly different from the case at hand. In the said case, no stay was operating on the decree of which contempt was alleged. Therefore, the decree-holder therein could very well initiate execution proceedings. However, in the instant case, the High Court, by order dated 8-8-2019 [Nirmal Lifestyle Ltd. v. Urban Infrastructure Real Estate Fund, 2019 SCC OnLine Bom 13106] stayed the Award subject to the deposit of an CONT.CAS(C) 233/2022 Page 17 of 24 amount. The time period of such deposit has been extended by this Court on two occasions while continuing the order of stay by implication. Having taken the advantage of the extended time period, the respondent-contemnor cannot, at this juncture, take the plea that non-compliance with the condition of deposit would only render the arbitrator’s award enforceable and that such failure to comply would have no consequences under the Contempt of Courts Act, 1971.
20. Further, it is trite law that the jurisdiction of a court under the Act, would not cease, merely because the order or decree of which contempt is alleged, is executable under law, even without having recourse to contempt proceedings.
21. Contempt jurisdiction could be invoked in every case where the conduct of a contemnor is such as would interfere with the due course of justice; vide Rama Narang v. Ramesh Narang. Contempt is a matter which is between the Court passing the order of which contempt is alleged and the contemnor; questions as to executability of such order is a question which concerns the parties inter se. The power of the Court to invoke contempt jurisdiction, is not, in any way, altered by the rights of the parties inter se vide Bank of Baroda v. Sadruddin Hasan Daya.
37. This Court in Indra Pasricha v. Deepika Chauhan [(2022) 2 HCC (Del) 769] also opined that: –
8. The law of contempt has been brought primarily to secure public respect and confidence in the judicial process and provide a sanction for any act or conduct which is likely to destroy or impair such respect and confidence. It is well settled that contempt must not be resorted to when there are provisions for execution, but at the same time, just because remedy of execution lies, it does not mean that contempt proceedings cannot be initiated. (Refer: Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay (P) Ltd.).
38. Execution proceedings seek enforcement of inter se rights between the parties concerned, whereas Contempt proceedings are initiated wherein the orders passed by the Court are wilfully, deliberately and malafidely disobeyed. The lis in Contempt proceedings is between the Court and the contemnor.
39. The same is also borne out from a meaningful reading of the observations made in Kinri Dhir (supra) and Indian Overseas Bank (supra). In fact, in Kinri Dhir (supra), this Court has stated that in case of conscious and wilful disobedience of an order of the Court, a case of contempt can be made out.
40. There is a thin line between the remedy of Execution of an order and resorting to Contempt proceedings. While the recourse of Execution may be an available option, however, what cannot be lost sight of is that the Court must also be conscious of its dignity, majesty, respect and compliance of its orders. The respect, confidence and supremacy of judicial proceedings must be maintained at all costs to secure rule of law and order in the society. People must have confidence in the judicial proceedings and the sanctity of the orders passed by the Courts.
41. For the said reasoning, I am of the view that merely because the petitioner has a right to file an execution petition, and that the petitioner has filed an execution petition, will not absolve the respondent from non-compliance of the directions contained in the order dated 19.02.2021.
42. Hence, I am of the firm view that petitioner having filed the execution will not absolve the respondent from contempt action on account of non-compliance of the orders passed by competent courts of jurisdiction. Merely on account of an order being executable, the power of the court to initiate contempt for violation of its decree, orders or the directions contained therein does not vanish.
43. The last question which is before me is whether the respondent is guilty of contempt for violating order dated 31.03.2022 passed by the learned MM court?
44. The Contempt of Court Act, 1971 under section 2(b) defines civil contempt. It reads as under:-
(b) civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
45. Therefore, contempt jurisdiction can be invoked when (a) there is an existing judgment, decree, direction, order or any other process of court, (b) there is a disobedience/ breach of the said judgment, order or direction contained therein, and (c) the breach/disobedience is wilful or intentional.
46. In the present case, there is an order directing payment of interim maintenance by the respondent to the petitioner and the daughter of the parties. The said order has not been set-aside, modified or altered. Therefore, the respondent is duty bound to comply with the directions contained therein however the respondent continues to disobey the same.
47. The submission of the respondent that the respondent has been readily paying Rs. 40,000/- as interim maintenance for the minor daughter appears to be a self-modification and an act of wilful disregard to the directions passed by the court. Such partial compliance is impermissible as the same constitutes a challenge to the majesty of the orders passed by the court and directions contained therein. Reliance is placed upon Patel Rajnikant Dhulabhai v. Patel Chandrakant Dhulabhai, (2008) 14 SCC 561. The operative portion reads as under:-
65. In Karnataka Housing Board v. C. Muddaiah [(2007) 7 SCC 689 : (2007) 2 SCC (L&S) 748] one of us (C.K. Thakker, J.) observed that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. Upholding of such argument would seriously affect and impair administration of justice.
66. In All Bengal Excise Licensees’ Assn. v. Raghabendra Singh [(2007) 11 SCC 374] this Court considered several cases and observed that wilful and deliberate act of violation of interim order passed by a competent court would amount to contempt of court.
70. From the above decisions, it is clear that punishing a person for contempt of court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the court to uphold and maintain the dignity of courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.
48. In addition, the argument regarding his inability to pay also does not inspire my confidence. The financial capacity of the respondent and his inability to pay has been duly considered by the learned MM in the order dated 31.03.2022. The same was challenged in Civil Appeal 114/2022 by respondent however without any success. In such circumstances for the respondent to continue to disregard the directions passed by the court for payment of Rs. 1.15 lakhs has no basis in law. Such conduct falls squarely under the ambit of the Contempt of Courts Act, 1971.
49. For the said reasons , the respondent is held guilty of intentionally and deliberately violating the order dated 31.03.2022 passed by the learned MM (Mahila Court-05), West, Tis Hazari Courts, Delhi in MC No 79/2017 titled as Ekta Abbot v Ankur Abbot.
50. Issue show-cause notice as to why the respondent should not be punished under the Contempt of Courts Act, 1971 for violating order dated 31.03.2022 passed by the learned MM court in MC No 79/2017 titled as Ekta Abbot v Ankur Abbot. The respondent will file reply within four weeks from today.
51. List before Roster Bench on 08.04.2024
JASMEET SINGH, J
FEBRUARY 19, 2024
dj
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