SHIVBARAN LAL Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Nisha Srivastava for the petitioners. The writ petition has been filed against the order of Additional District Judge dated 2.8.2012 by which he has directed to the Chief Medical Officer to issue a certificate that petitioner-2 is insane person.

(2.) Petitioner-1 filed an application (registered as Misc. Case No. 523 of 2011) under the Mental Health Act, 1987 for appointment of guardian of Kumkum, petitioner-2 (suffering from mental illness). In the application it has been stated that Kumkum, petitioner-2 was suffering from mental illness, carrying disability of about 75% and she is unable to take care of herself as well as her properties. Under the Government Order No. Sa-3-1155/10-2-81 dated 6.8.1981 a family pension has been released by State of U.P. to the physically challenged and mentally ill persons. Petitioner-2 was entitled for the same pension under the Government Order. In such circumstances, petitiorier-1 be appointed as guardian of petitioner-2. In support of the application, petitioner-1 also submitted medical certificate issued by Chief Medical Officer, Barabanki dated 27.11.2010 in which it has been mentioned that petitioner-2 is mentally ill and carrying disability of about 75%. The application was heard by Additional District Judge who by the impugned order has held that as the Chief Medical Officer has not declared petitioner-2 as insane person, accordingly he directed to Chief Medical Officer to issue a certificate as to whether petitioner-2 was an insane person or not. The Counsel for the petitioner submits that under section 53 of the Mental Health Act, the guardian can be appointed to the mentally ill person for taking care of himself/herself. The word 'mentally ill person' has been defined under section 2(1) of the Act:-"mentally ill person" means a person who is in need of treatment by reason of any mental disorder other than mental retardation. The certificate issued by Chief Medical Officer shows that the petitioner-2 is mentally ill person and she is carrying mental disability of about 75%. Under the law there is no requirement of a certificate that petitioner-2 was insane person or was suffering from mental retardation. The Additional District Judge has illegally directed the Chief Medical Officer to issue certificate regarding the mental insane of pertitioner-2 although there is no such requirement under the law.

(3.) Section 53 and 57 of Mental Health Act, 1987 is quoted below: