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Andhra Pradesh High Court
Judges : RAMA RAO
K.Sivaram - Appellant
Versus
K.Mangalamba - Respondent
Crl.R.C.No.704/83
Decided On : 04-15-85
Advocates Appeared :
Mr. C. Padmanabha Reddy, Mr. D. Sundararaja Rao, Mr. C. Poornaiah
Held: The provisions of Cr.P.C. and as well as C.P.C. are silen and dumb regarding deaf and dumb persons and there is no provision providing appointment of guarding or disabling the deaf and dumb person to file a suit. Section 318 Cr.P.C. and Order 32 Rule 15 C.P.C. are cousin provisions as section 318 Cr P C pertains to persons proved to be of mental incapacity and Order 32 Rule 15 C.P.C. relates to persons of mental infirmity. Both under section 318 Cr.P.C. and Order 32 Rule 15 C.P.C. the persons whose mental faculty is partially impaired and not total eclipse of mental alertness are taken care of. The idiocy or lunacy is total infirmity or incapacity is erosio of mental faculty not amounting to lunacy or idiocy.
It is true that the speech is the media for conveying the ideas generated by mental faculty but even without speech the communication can be effectively made by writing or sings or gestures. Equally the facul1ty of thinking and intelligence reacts through medium of hearing but the sounds, sings and gestures are an effective -substitute. Therefore, mental capacity is not strained or impaired due to deficiency in hearing or speech; The want of speech or hearing should not be considered as or equated to mental chaos of disorder. The equating of deaf mute to mental infirmity or capacity is not founded upon scientific or medical data and on research it is found that the deaf-mute are generally more mentally alert.
In the case of deaf and dumb person, the court may have to seek the help of a person who can effectively transmit the ideas conveyed by the person by sings or otherwise. The court can take the help of the person intimately associated with her to understand her and to convey information to her.
Section 119 of Evidence Act is confined to dumb witnesses and provides that the evidence can be taken in any other manner and by signs made in open court and such evidence is considered as oral evidence and this equally applies to deaf persons also. Therefore, the court below bearing in mind in section 119 of the Evidence Act and the indications set out above may take the evidence of the wife.
CRIMINAL PROCEDURE CODE, Sec. 318 and Civil Procedure Code, Order 32, Rule 15 - Petition by wife who is a deaf and dumb for maintenance to herself and to her minor children - Objection taken by the husband as to the maintainability of the petition - Rejected by the trial Court - Sustainable.
Held : The petition is maintainable. The provisions of Cr. P.C. and as well as C.P.C. are silent and dumb regarding deaf and dumb persons and there ii no provision providing appointment of guardian or disabling the deaf and dumb person to file a suit. Both under sec. 318 Cr. P. C. and Or. 32 Rule 16 C.P.C., the persons whose mental faculty is partially impaired and not total eclipes of mental alertness are taken care of. The mental capacity is not strained or impaired due to deficiency in hearing or speech, The equating of deaf-mute to mentally infirmity or capacity is not founded upon scientific or medical data and on research it is found that the deaf-mute are generally more mentally alert. In a situation where the person is of deaf and dumb the appointment of e guardian does not in any way retrieve the situation lis the guardian otherwise than persons Closely associated with her or the court guardian cannot be expected to have intimate knowledge of the signs known to her and under tand her. In the cafe of a deaf and dumb person, the Court may have to seek the help of a person who can effectively transmit the ideas conveyed by the person by signs or otherwise. The Court can take the help of the person intimately associated with her to understand her and to convey information to her. It is for the Court to consider in the facts and circumstances of each case to take the help of either one of her children or her husband or the wife as the case may be or sometimes the parents as an interpreter and sometimes the gestures and signs can be understood easily without the help of interpreters.
A.I.R. 1954 Madras. 810 and A. I. R. 1930 Lahore 1425 dissented from.
Crl. R. C. Dismissed.
( 1 ) THIS revision case arises out of the maintenance proceedings. The husband is the petitioner. The wife is a deaf and dumb woman and illiterate and she cannot read or write. She filed a petition on her behalf and also representing the minor children for maintenance. Objection is taken by the husband that the petition is not maintainable as she cannot understand the proceedings and the petition should have been filed through her mother or brother. In the petition filed under section 482 Cr. P. C. as to the maintainability of the petition filed by the wife the court below arrived at the conclusion that she is able to understand the nature of proceedings and her mental faculty is quite sound though she is dumb and, therefore, she can properly represent and if any help is necessary to conduct the proceedings, the second applicant i. e. the daughter, studying in the Convent can help. Aggrieved by this order, this revision petition is filed.
( 2 ) THE learned counsel for the petitioner contends that a deaf and dumb person is incapable of understanding the proceedings and as such she should be represented by a guardian and the petition by herself is not maintainable. The learned counsel for the respondents contends that the mental faculty is in tact and she is intelligent enough to understand the proceedings and also communicate herself by signs and, therefore, the petition by herself is maintainable. At the outset the learned counsel for the petitioner referred to section 318 cr. P. C. which is as follows :-"if the accused, though not of unsound mind, cannot be made to understand the proceedings, the court may proceed with the inquiry or trial; and, in the case of a court other than a high Court, if such proceedings result in a conyiction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit. "
( 3 ) SECTION 318 Cr. P. C. is applicable to the proceedings for the trial of the accused who are otherwise incapable of perception of proceedings though they cannot be considered to be of unsound mind. In such cases of persons who are otherwise than unsound, there is no interdiction on the power to proceed with the trial but the proceedings culminating in conviction are subject to the clearnce of the High Court and the appropriate order that may be passed in the circumstances. Therefore, section 318 Cr. P. C. cannot be pressed into service in the circumstances.
( 4 ) THE learned counsel for the petitioner contended that the proceedings under section 125 Cr. P. C. are of a civil nature and the petitioner has to establish that the husband having sufficient means neglected or refused to maintain and in the absence of expression, the allegations are not intelligible and Order 32 Rule 15 CPC governs the situation. Order 32 Rule 15 CPC is as follows :-"15. Rules 1 to 14 (except Rule 2a) to apply to persons of unsound mind :- rules 1 to 14 (except Rule 2a) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued. " order 32 Rule 15c P C provides that the procedure embodied in Rules 1 to 14 regarding the representation on behalf of the minors apply to the persons who are adjudged of unsound mind and also to persons who are found by the court to be suffering from mental infirmity and disabled from protecting their interest from suing or being sued. Order 32 Rule 15 C P C primarily applies to the persons who are totally incapable of understanding and of full-fledged unsound mind and also in certain situations to persons who are not able to come up to normal mental standards. Order 32 Rule 15 c P C is designed to protect the persons who are incapable of understanding
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