Sunday, 6 July 2014

Legal Proceedings in case of mentally disordered person

PLJ 2014 Lahore 189
[Multan Bench Multan]
Present: Ibad-ur-Rehman Lodhi, J.
Mst. SHAGUFTA PARVEEN--Appellant
versus
QAISER IJAZ & 2 others--Respondents
F.A.O. No. 172 of 2013, decided on 4.10.2013.
Mental Health Ordinance, 2001 (VII of 2001)--
----Ss. 29 & 30(1)(d)--Power the Court of protection to examine mentally disorder person with regard to mental capacity and condition of such person--Inherited shares--Validity--Examination of alleged mentally disordered person by Court of protection was thus within competence of such Court as provided in Section 30 (1)(b) of Ordinance and no exception can be taken of such proceedings and findings of Court of protection--Proceedings were crude and cruel effort on part of appellant to even usurp legitimate share inherited by mother from estate of her deceased son--Even at end of the day such share would devalue upon legal heirs of such lady which includes appellant but it seemed that appellant was in hurry to get such share--Appellant had failed to establish respondent as a mental disordered person--Court of protection had reached to just and proper when examination--Appeal was dismissed.          [Pp. 192 & 192] A & C
Mental Health Ordinance, 2001 (VIII of 2001)--
----Preamble--Mental Health Ordinance, was promulgated to consolidated and amend law relating to treatment and care of mentally disordered persons, to make better provisions for their care, treatment, management of properties and affairs and to provide for matters connected therewith or incidental thereto and to encourage community care of such to provide for promotion of mental health and prevention of mental disorder.           [P. 191] B
Ch. Habib Ullah Nahang, Advocate for Appellant.
Date of hearing: 4.10.2013.
Order
The appellant who is paternal grand daughter of Respondent No. 3 moved the Court of Protection under the provisions of Section 29 of Mental Health Ordinance, 2001 (Ordinance No. VIII of 2001) (hereinafter to be referred as "the Ordinance"), seeking a declaration that Respondent No. 3, her paternal grand mother is a mentally disordered person.
2.  The learned Additional District Judge, Multan in his capacity of the Court of Protection as defined in Section 2(d) of the Ordinance, required Respondent No. 3 to attend the Court and after personal examination of said respondent by the Court, the petition moved by the appellant was dismissed on 14.09.2013, hence this appeal before this Court.
3.  The learned counsel for the appellant has contended that the first appeal must be admitted as of right and the respondents be summoned.
4.  Section 46 of the Ordinance provides a remedy of appeal from the order made by a Court of Protection under Chapter-V of the Ordinance but it is nowhere provided that the appeal so filed would be admitted as of right.
5.  The learned counsel for the appellant was asked to address the arguments in support of appeal and thus, he contended that the Court of Protection was not competent itself to examine the person for whom the petition has been filed seeking the declaration to declare such person as a mentally disordered person and the matter must be referred either to a Psychiatric or any other expert in the relevant field.
6.  Section 30(1)(d) of the Ordinance provides the regulation for proceedings of the Court of Protection which empowers the Court of Protection to examine the alleged mentally disordered person with regard to the mental capacity and condition of such person.
7.  The perusal of impugned order reveals that Respondent No. 3, MstBakhsh Ellahi was examined by the Court of Protection and the finding in this regard are relevant which are reproduced herein below:--
"Although Mst.Bakhsh Elahi is hard of hearing and extremely old lady, appears to be octogenarian but she has given very sound and pertinent and relevant replied to the Questions No. 7, 8 and 9 about her property. When she has been asked about her property, she has clearly stated that she will not give her property to any one as long as she is alive. She will handover her property to person who will love her. She has also asked the petitioner Shagufta Parveen whether she received property of her father Mian IjazAhmad."
The examination of the alleged mentally disordered person by the Court of Protection was thus within the competence of such Court as provided in Section 30(1)(d) of the Ordinance and no exception can be taken of such proceedings and findings of learned Court of Protection.
8.  Preamble of the Legislation is always considered a key to such legislation and when we look into the preamble of the Ordinance, it is but clear that the Ordinance was promulgated to consolidate and amend the law relating to the treatment and care of mentally disordered persons, to make better previsions for their care, treatment, management of properties and affairs and to provide for the matters connected therewith or incidental thereto and to encourage community care of such mentally disordered persons and further to provide for the promotion of mental health and prevention of mental disorder.
9.  The practical experience proves otherwise. No serious efforts are seen in any sector of life, collective or individual in order to achieve the noble goal provided in preamble of the Ordinance. In comparison whereof, the provisions of Ordinance are being misused in order to achieve our wordly desires. Our social fabrics are being damaged to such extent that the concept of 'Old People Home" has been introduced in our `Islamic Society'. Real children are going to admit their aged and ailing parents in such shelter homes and once the parents are left there real children never return to at least have a look on their said parents. The properties and assets of such parents are thereby usurped by such avaricious children. Even during life time of the parents it has become the custom of our society that the children start claiming their shares from their parents, from the property owned by their parents. The children are crazy enough not to wait for the time they become entitled to have their shares on inheritance after the life of their parents come to an end. This is the height of greed.
Quranic Command as ordained in Surah "Bani Israel" Ayah No. 23 & 24, reproduced herein below is completely being ignored.

Even in the present case, Ijaz Ahmad died leaving behind his mother MstBakhsh Ellahi (Respondent No. 3), two sons Qaisar Ijaz and Athar Ijaz, Respondent No. 1 & 2 and one daughter Mst.Shagufta Perveen, the present appellant, Mother of the deceased naturally got 1/6th share out of the estate of her deceased son Ijaz Ahmad whereas two sons and one daughter have also inherited from the estate of deceased in accordance with their respective shares. It is such 1/6th share inherited by Mst.Bakhsh Ellahi which is bone of contention in this matter. The present proceedings are crude and cruel effort on the part of the appellant to even usurp the legitimate share inherited by the mother from the estate of her deceased son. Even at the end of the day such 1/6th share would devolve upon the legal heirs of such lady which includes the present appellant but it seems that the appellant is in hurry to get such share.
10.  The appellant has failed to establish Respondent No. 3 as a mentally disordered person. The Court of Protection has reached to a just and proper conclusion on 14.09.2013 when examined Mst.Bakhsh Ellahi and the petition filed by the appellant was dismissed.
11.  I see no illegality in the impugned order which is sustained and the appeal which has no force is dismissed in limine.
(R.A.)  Appeal dismissed

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