Failure to consider the mental illness of a party in maintenance proceedings and non-compliance with mandatory provisions under Cr.P.C. and the Family Courts Act.

Heard learned counsel for the petitioner, learned counsel for the opposite party no.2 as well as learned Additional Public Prosecutor appearing on behalf of the State.

2. Both these petitions are being disposed of by this common judgment as the impugned orders dated 19.12.2015 and 14.07.2016 have been passed in Miscellaneous Case No.15 of 2016 by learned Principal Judge, Family Court, Araria whereby the learned Judge directed the son of the petitioner to pay maintenance of Rs.2,000/- per month to opposite party no.2, namely, Smt. Sundari Devi. Subsequently by order dated 14.07.2016, the learned Judge directed Santosh Jha, the father of Rakesh Jha, to pay the dues of maintenance amount.

3. A brief fact of this case is that opposite party no.2 Sundari Devi filed a petition for maintenance under Section 125 Cr.P.C., 1973 in the court of Principal Judge, Family Court, Araria on 25.11.2014. Notice was issued to her husband but the notice was not served and it was reported that it could not be served. The Principal Judge, Family Court, Araria proceeded ex-parte. In the meanwhile, the present petitioner, father of the husband of Sundari Devi appeared before the court on 09.09.2015 with a petition that his son is undergoing treatment at Central Institute of Psychiatric, Kanke, Ranchi as an indoor patient as suffering from mental illness but the learned Judge proceeded further in the matter and concluded the proceeding ex-parte directing the husband to pay maintenance of Rs.2,000/- per month to his wife. As the maintenance amount was not being paid so a petition was filed by the present petitioner that his son is still suffering from mental illness. By order dated 14.07.2016, guardian of the husband was directed to pay the maintenance amount. Aggrieved by these two orders, the petitioner has challenged both the orders in these criminal revision applications.

4. Learned counsel for the petitioner submits that the petitioner appeared after getting knowledge of the proceeding and filed a petition that his son was being treated in Central Institute of Psychiatric, Kanke, Ranchi for mental illness but no order was passed by the learned Principal Judge, Family Court, Araria in view of provisions laid down under Sections 328 to 331 Cr.P.C. rather continued the proceeding and passed the final order of maintenance ex-parte. In view of the said provision it is incumbent on the court to make enquiry and if it is found that the proceeding is going on during the mental illness of the opposite party (husband), further proceeding was required to be postponed till he becomes mentally fit but in the present case such mandatory provision was not followed by the court below. It is further contended that medical report of the treatment going on in Central Institute of Psychiatric, Kanke, Ranchi was filed but the same was not considered and no order for medical enquiry by the medical board was passed in view of Section 328 Cr.P.C. rather continued the proceeding ex-parte and passed final order and medical prescriptions of the son of the petitioner as well as report of Central Institute of Psychiatric has also been filed.

5. The learned counsel appearing on behalf of opposite party no.2 submits that the provision of Section 328 and 331 do not apply in the present proceeding considering the provisions of the Family Court Act. He next submits that while this Court granted anticipatory bail to the husband directed him to pay maintenance of Rs.500/- per month but the same was also not complied by the petitioner’s son.

6. Having considered the rival submissions of both sides and on perusal of the records, it is evident that a petition was filed by the petitioner while a proceeding under Section 125 Cr.P.C. in the court of Principal Judge, Family Court, Araria was going on exparte, drawing attention to the court that his son (husband of opposite party no.2) is admitted in Central Institute of Psychiatric, Kanke, Ranchi as suffering from mental illness but no