Point of Law : Ss. 54 reproduced as application for judicial inquisition.

JUDGMENT :

Sandeep Sharma, J.

Instant appeal filed under S.76 of Mental Health Act, 1987 (hereinafter, ‘Act’), lays challenge to judgment dated 30.6.2017, passed by learned District Judge, Sirmaur District at Nahan, Himachal Pradesh in petition No. 1-G&W/2 of 2016/13, preferred by the petitioner/appellant (hereinafter, ‘appellant’) under Ss. 53 and 54 of the Act, seeking therein to appoint her as a legal guardian in respect of Ms. Usha, allegedly a person of unsound mind.

2. Precisely, the facts of the case, as emerge from the record, are that the appellant herein filed an application under Ss.53 and 54 of Act, praying therein to appoint her as a legal guardian in respect of Ms. Usha Devi, a person of mentally unsound mind and further permit her to operate and open savings bank account in the name of Usha as her guardian as per law for the benefit of person of unsound mind.

3. Aforesaid prayer made on behalf of the appellant came to be seriously opposed by the respondents namely Tejaswi Singh, Usha widow of Shiv Raj and Smt. Roop Lekha, who are related to Usha, person of unsound mind. Since no cogent and convincing evidence ever came to be placed on record qua mental illness of Ms. Usha, on behalf of appellant, learned court below dismissed the petition as detailed herein above. In the aforesaid background, appellant has approached this court in the instant proceedings, praying therein to set aside impugned order

4. I have heard learned counsel for the parties and perused the material available on record.

5. Mr. Verma submitted that in the case at hand, inadvertently, petition under Ss.53 and 54 of Act was filed by the appellant but even then, learned court below ought not have dismissed the same on the ground that no cogent and convincing evidence ever came to be led on record qua mental illness of Ms. Usha, rather, it ought to have ordered for enquiry in terms of provisions contained under S.50(4) of the Act. He submitted that after receipt of report of Assessors appointed in terms of S.50(4) of the Act, Court could consider prayer made on behalf of the appellant for her being appointed as legal guardian of mentally ill person namely Usha.

6. Mr. Lovneesh Kanwar, Senior Advocate duly assisted by Ms. Anchal Sharma, Advocate representing respondent No. 4, while supporting the impugned order passed by learned court below, vehemently argued that since there was a specific prayer made on behalf of the appellant to appoint her as Legal Guardian of Usha, there was otherwise no occasion for learned court below to order for inquisition in terms of S.50 of the Act. He submitted that bare perusal of application filed by the appellant under Ss. 53 and 54 clearly reveals that the appellant wanted her to be appointed as legal guardian of Usha on the ground that said person is of unsound mind. Mr. Kanwar submitted that bare perusal of pleadings as well as evidence nowhere suggests that the appellant was able to prove on record mental illness of Ms. Usha and as such, no illegality can be said to have been committed by the learned court below, while passing the order impugned in the instant proceedings.

7. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this court finds that there is no provision contained under Ss. 53 and 54 of the Act, which enable a party to directly approach court for being appointed as legal guardian of the person of unsound mind. Bare perusal of provisions contained under Ss. 53 and 54 nowhere suggests that the party can directly come to the court for being appointed as legal guardian of person of unsound mind, rather provisions contained under Ss. 53 and 54 of the Act, empowers court to order appointment of legal guardian of a mentally ill person, if there is a specific report made pursuant to enquiry ordered in terms of provisions of S.50(4) that the person is incapable of taking care of himself and managing h