Crl.W.P. No.1800 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.W.P. No.1800 of 2010 (O&M) Date of decision: 20.04.2011. Madhubala ....Petitioner Versus State of Haryana and others ....Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present: - Mr. R.M. Singh, Advocate, for the petitioner. Mr. Gaurav Dhir, DAG, Haryana. Mr. Sanjay Vashisht, Advocate, for respondents No.5 to 8. ***** KANWALJIT SINGH AHLUWALIA, J (ORAL) Present petition has been filed under Article 226 of the Constitution of India for issuance of writ in the nature of habeas corpus for release of detenue Bhim Kumar @ Pappu. Petitioner claims herself to be lawfully wedded wife of Bhim Kumar @ Pappu. This Court on February 7, 2011 had passed the following order: - “The present writ petition under Article 226 of the Constitution of India has been preferred by Madhubala, who claims herself to be legally wedded wife of Bhim Kumar @ Pappu son of Late Shri Hari Ram. Bhim Kumar @ Pappu is present in Court. He is not having a good mental health. His wife has claimed before me that he is mentally retarded. Bhim Kumar @ Pappu has been produced in Court by his two uncles, namely, Dharamveer @ Dharam Chand and Rajender Prasad, who are impleaded as respondents No.5 and 6 respectively. During the course of arguments, it has also surfaced Crl.W.P. No.1800 of 2010 (O&M) -2- that Bhim Kumar @ Pappu inherited 2 ½ acres of land, which vide a separate sale deed has bee transferred in the name of Veena Devi wife of Rajender Prasad respondent No.6. I have questioned Bhim Kumar @ Pappu. It is evident that he is not able to take care of his interest. Since Bhim Kumar @ Pappu is owner of land, he seems to have been exploited by his uncles and wife equally. The bone of contention is the piece of land and nobody has love and affection for Bhim Kumar @ Pappu. This Court is guardian of all those, who cannot take care of themselves. This Court cannot become a moot spectator to the designs of the relations, who are bent upon to deprive Bhim Kumar @ Pappu of his land and later desert him. Therefore, in the facts and circumstances of this case, it is necessary that I.Q. (intelligence quotient) of Bhim Kumar @ Pappu should be assessed and it should come to record as to whether he was competent to execute the sale deed in favour of his aunt Veena Devi and power of attorney in favour of his wife. Bhim Kumar @ Pappu shall be examined by the Department of Psychiatry, P.G.I., Chandigarh who shall submit a report before the adjourned date regarding I.Q. (intelligence quotient) of Bhim Kumar @ Pappu as to whether he was competent to trasfer his land in favour of his aunt (Chachi). The Department shall also take into consideration the statements of Dr. M.V. Padma, AIIMS, New Delhi who was examined as AW1, Anubha Dhal as PW2 and Dr. Karan Singh, who was examined as AW3 in Civil Suit RBT No.529. Photo copies of testimonies of these witnesses along with all other relevant documents shall be handed over to counsel for the State by Ms. Veena Kumari, counsel for the petitioner. State of Haryana shall make necessary arrangements to get Bhim Kumar @ Pappu examined from the Department of Psychiatry, PGI, Chandigarh. Bhim Kumar @ Pappu shall be kept in PGI in a suitable ward and be produced before this Court on the next date. A copy of this order attested by the Special Secretary of this Court be handed over to counsel for the State for onward transmission to the Director, P.G.I., Chandigarh for doing the needful. Adjourned to 14.02.2011.” After compliance of the order dated 7.2.2011, report was submitted by Dr. P. Kulhara, Professor and Head, Department of Psychiatry, PGIMER, Chandigarh. The conclusion of the report finds Crl.W.P. No.1800 of 2010 (O&M) -3- mention in the order dated 24.2.2011 and the same reads as under: - “Conclusion: On the basis of our examination and psychological test, it is our considered opinion that Bhim Singh @ Pappu is sufferng from Mid Mental Retardation. Because of his limited intelligence, his capacity to understand business transactions, particularly land deals is almost non-existent. Therefore, in our medical opinion, he is not competent to transact any business. We further believe that he has no capacity to provide informed consent for any business deal as well....” Since the alleged detenue Bhim Kumar @ Pappu is having mild mental retardation, his case is to be dealt with under the provisions of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. Deputy Commissioner, Palwal, had filed an affidavit stating that the committee as envisaged under the Act has been constituted for the District Palwal. After hearing learned counsel for the parties, this Court is of the view that abovesaid Act has a complete mechanism regarding appointment of the lawful guardian to decide regarding custody of persons suffering from mental retardation and also to manage properties of such persons. Thus, a writ in the nature of habeas corpus may not be an appropriate remedy to redress the grievance of the petitioner. It is ordered that the file of the present case be sent to the Chairman of the Committee constituted under the Act. Mr. R.M. Singh, learned counsel for the petitioner, has undertaken that father of the petitioner shall produce Bhim Kumar @ Pappu before the Committee on 9.5.2011. The Committee on that day shall decide as to whom the interim custody of Bhim Kumar @ Pappu is to be entrusted. In view of the additional Crl.W.P. No.1800 of 2010 (O&M) -4- affidavit furnished by respondent No.5 Dharambir, that petitioner was already married twice, the Committee shall conclude the proceedings regarding management of the property and appointment of guardian within three months from the first date when the parties cause appearance before it. It is clarified that custody of Bhim Kumar @ Pappu was handed over to the father of the petitioner for the time being. The Committee, uninfluenced by any of the observations made by this Court, shall decide these questions, especially the welfare of Bhim Kumar @ Pappu, to be of paramount consideration. With the observations made, present petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge April 20, 2011 R.S.