Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 27 February, 2017
th
Date of Judgment: 30 May, 2017
+ W.P. (CRL) 2527/2015 & Crl. M.A. No.14648/2016
GEETA SHARMA ..... Petitioner
Through Mr.Nishant Kumar Srivastava, Adv.
with Mr.Zachauah Jacob, Adv.
versus
THE UNION OF INDIA & ANR ..... Respondents
Through Mr.Arun Kumar, Adv. for
Mr.Kirtiman Singh, CGSC for R-1.
Mr.Atul Sharma, Adv. with Ms.Ritika
Talwar, Mr.Abhishek Sharma &
Ms.Abhilasha Singh, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J.
1. Petitioner has filed the present writ petition under Article 226 of the
Constitution of India seeking a writ of Habeas Corpus directing
respondents No.1 & 2 to produce the daughter of the petitioner,
namely, Ms. „X‟ (name withheld to maintain privacy), who is a major.
It is alleged in the petition that Ms. „X‟ is being forced to undergo
mental healthcare treatment and admitted in Nightingale Hospital for
Mental Health at Marylebone, London (United Kingdom), against her
wishes. Prayer is also sought that a Medical Board be constituted to
W.P. (Crl.) No.2527/2015 Page 1 of 23
determine if there is any requirement of such treatment. Direction is
also sought to respondents No.1 & 2 to immediately provide all the
medical documents and reports of Ms. „X‟ to the petitioner.
2. The necessary facts of the case, which are required to be noticed for
disposal of this writ petition, are as under:-
(i) Marriage between the petitioner and respondent No.2 was
solemnized under the provisions of the Special Marriage Act,
1954 on 26.04.1987. Ms. „X‟ was born out of their wedlock in
Delhi on 12.09.1989. In the year 1998, marriage between the
petitioner and respondent No.2 was dissolved by a decree of
divorce by mutual consent, under Section 28(2) of the Special
Marriage Act. Thereafter, the petitioner and respondent No.2
started residing separately. The custody of the two then minor
daughters was handed over to the petitioner while respondent
No.2 had undertaken to bear the entire expenses pertaining to
their schooling and higher education.
(ii) Initially, the daughters remained in the custody of the petitioner.
Subsequently, they were sent to a Boarding School. During
their summer vacations in the month of May, 2006 when the
daughters were with the petitioner, due to a mild rebuke by the
mother on some issue, Ms. „X‟ got angry, called respondent
No.2 who arrived at the residence and with the help of the
police, took away the daughters in violation of the terms of the
decree of divorce. The petitioner claims that she did not
approach any Court of law as per the advice being rendered to
W.P. (Crl.) No.2527/2015 Page 2 of 23
her. However, Ms. „X‟ continued to stay in touch with the
petitioner and confided in the petitioner with respect to all
problems faced by growing daughters. Meanwhile, respondent
No.2 solemnized his second marriage.
(iii) It is further stated in the petition that Ms. „X‟ was forced by
respondent No.2 to take up Economics (Honours) in Sri Ram
College of Commerce (SRCC) at New Delhi, disregarding the
fact that she did not have Mathematics as one of the subjects in
Class-XI and XII. Ms. „X‟ failed five consecutive exams and
ultimately discontinued her studies at SRCC, probably by then
she was on medication for depression and has been visiting a
Psychiatrist on her step-mother‟s insistence.
(iv) In the year 2013, the petitioner discovered the psychiatric
dosses in the bag of Ms. „X‟. She then confronted respondent
No.2 and she was assured by respondent No.2 that Ms. „X‟
would not be administered such drugs. However, the drugs
were continued. In the month of January, 2015, the petitioner
received a call from Ms. „X‟ informing her that she was going
to London in connection with an internship. Although Ms. „X‟
was assured stay at the house of the aunt of the step-mother, but
a month later, the petitioner was informed by Ms. „X‟ that she
had been thrown out and thereafter, a week later, respondent
No.2 had also left her stranded in a hotel without money. The
petitioner then made complaints to the office of respondent
No.1 and also to the High Commissioner. Subsequently, the
W.P. (Crl.) No.2527/2015 Page 3 of 23
petitioner learnt from Ms. „X‟ through telephonic calls, text
messages and e-mails that she had been shifted to Nightingale
Hospital, London and was undergoing treatment despite her
objections. The petitioner was informed by Ms. „X‟ about her
distress and harassment at the hospital. No family person was
around to take care of her despite repeated requests and
complaints. Respondent No.2 failed to take urgent steps to
intervene in London to ensure the safety and well-being of the
life of Ms. „X‟, nor any official information as to her treatment
was provided.
(v) It is strongly urged that respondent No.2 has left Ms. „X‟, a
young girl, in an alien country alone despite the fact the medical
treatment is available in India where she would get
psychological support 24 hours.
(vi) Reliance is placed on copies of e-mails and text
communications between the petitioner and Ms. „X‟. It is the
case of the petitioner that she is extremely worried about the
safety and well-being of her daughter who is forced to undergo
psychiatric treatment in an alien environment. There is no
family person around her to talk to her or to give her solace
especially when medical facilities are available in India and the
family is also available in India.
(vii) It is also stated that on 21.10.2015 the petitioner received a call
from Ms. „X‟ from the hospital informing her that she does not
want to stay in London and requested her mother to take urgent
W.P. (Crl.) No.2527/2015 Page 4 of 23
steps to save her. It is also claimed that Ms. „X‟ has been
making appeals for her return to India.
3. Learned counsel for the petitioner submits that Ms. „X‟ is an Indian
Citizen. She is being forcefully held up in London by respondent
No.2. Ms. „X‟ is unhappy with her treatment which she is undergoing
in an alien environment with different food habits. Moreover, the
petitioner is completely in the dark about the treatment being
administered to her and no treatment can be worthwhile when the
patient is being forcefully kept in a mental hospital in London.
4. Notice was issued in this matter. Reply has been filed by respondent
no.2, father. Subsequently, an application was filed by respondent
no.2 seeking permission to file a short affidavit along with certain
communications which are personal in nature. The prayer made in
this application was not opposed. Accordingly, permission was
granted to respondent no.2 to file the short affidavit along with the
documents in a sealed cover. A direction was also issued that each
time, when the sealed cover is opened, post hearing the same would be
resealed. Another application was filed by respondent no.2 when on
24.11.2015, the following order was passed:
“ CRL M.A. 17045/2015
This is an application filed by respondent no.2 seeking
a direction to restrain media coverage/reporting (including
print media, electronic and social media) of the present
proceedings/orders passed in the present matter.
Learned counsel for respondent no.2 submits that the
present petition pertains to the young daughter of the
W.P. (Crl.) No.2527/2015 Page 5 of 23
petitioner and respondent no.2 and the issue involved is
purely personal and private in nature and is not of any public
importance. Counsel further submits that respondent no.2
apprehends that media reporting on the present proceedings
will put the private information of the daughter of petitioner
and respondent no.2 in the public sphere. Counsel also
contends that disclosure of private communications in public
abrogates the individual‟s right to privacy. In support of this
contention, counsel for respondent no.2 has relied upon a
decision rendered by the Supreme Court of India in the case
of Sharda v. Dharampal, reported at (2003) 4 SCC 493,
more particularly para 71, which reads as under:
“71. “Privacy” is defined as “the state of being
free from intrusion or disturbance in one‟s private life
or affairs”. Mental health treatment involves
disclosure of one‟s most private feelings. In sessions,
therapists often encourage patients to identify
“thoughts, fantasies, dreams, terrors, embarrassments,
and wishes”. To allow these private communications
to be publicly disclosed abrogates the very fibre of an
individual‟s right to privacy, the therapist-patient
relationship and its rehabilitative goals. However, like
any other privilege the psychotherapist-patient
privilege is not absolute and may only be recognized
if the benefit to society outweigh the costs of keeping
the information private. Thus if a child‟s best interest
is jeopardized by maintaining confidentiality the
privilege may be limited.”
Learned counsel for respondent no.2 has also relied upon
United Nations, Economic and Social Council, Siracusa Principles
on the Limitation and Derogation Provisions In the International
Covenant on Civil and Political Rights, more particularly Clause I
(B) (ix) (38), which reads as under:
“ix. “restrictions on public trial”
38. All trials shall be public unless the Court
determines in accordance with law:
W.P. (Crl.) No.2527/2015 Page 6 of 23
(a) the press or the public should be excluded from all or
part of a trial on the basis of specific findings
announced in open court showing that the interest of
the private lives of the parties or their families or of
juveniles so requires; or
(b) the exclusion is strictly necessary to avoid public
prejudicial to the fairness of the trial or endangering
public morals, public order (orde public), or national
security in a democratic society.”
Counsel, in these circumstances, prays that media
coverage/reporting of any nature should be restrained in this matter.
Notice. Learned counsel for the petitioner accepts notice and
supports the prayer made by respondent no.2.
Heard counsel for the parties. Having regard to the fact that the
issue involved in this petition is purely personal and private in nature,
and is not of any public importance and further taking into
consideration that in case, the present application is not allowed, it
would not only cause irreparable loss to the parties but would also
have an adverse impact on the child of the parties as well, the present
application is allowed. The media (any form of media) including,
print, electronic and social media, is restrained from
covering/reporting the proceedings.
Application stands disposed of.”
5. Having regard to the directions passed by this Court and with a view
to protect the privacy of the child, we have referred to the patient in
question as Ms. „X‟.
6. As per the short affidavit, both the daughters of the petitioner and
respondent no.2 have been staying with respondent no.2 since 1998. It
has been stated that respondent no.2 has been responsible for their
overall well-being and both the daughters are well-educated. The
W.P. (Crl.) No.2527/2015 Page 7 of 23
short affidavit reveals that in the year 2007, Ms. „X‟ started to show
symptoms of a psychiatric disorder and in 2008 was diagnosed with
Paranoid Schizophrenia by two leading Psychiatrists in Delhi. It is
stated that Schizophrenia is a severe, debilitating brain disorder that
can cause people to see the world in unusual ways and people with
Schizophrenia often believe that other people can read their thoughts
or are planning to harm them, they may hear voices that are not there
and may experience visual hallucinations. It is stated that due to their
altered perception of reality, patients of Schizophrenia often say things
which are a product of the patient‟s imagination. Schizophrenia is not
only hard for the person suffering from it, but it also takes a toll on the
family as well. It is stated that immediately upon her diagnosis, the
respondent no.2 began her treatment under various leading
Psychiatrists in India including a specialist from AIIMS. True copy of
the OPD Card of Ms. „X‟ issued by AIIMS has been filed.
7. It is pointed out that the treatment of Ms. „X‟ continued in India uptil
the end of 2014. It is stated that despite prolonged treatment, Ms. „X‟
did not show permanent or long term improvement and towards the
end of 2014 or in the beginning of 2015, she was advised closely
monitored advance treatement by Dr. Kavita Arora, one of the doctors
who had been treating her since 2008, which opinion was endorsed by
other doctors as well. The fact that India does not have any world
class psychiatric institution/treatment facilities; the state of existing
facilities is questionable and there is a stigma associated with
psychiatric disorders in the country, prompted the respondent no.2 to
W.P. (Crl.) No.2527/2015 Page 8 of 23
explore various treatment options available around the world. After
thorough discussion and research with medical experts, the respondent
no.2 contacted the Nightingale Hospital in London, United Kingdom.
It is stated that Nightingale Hospital is one of the world‟s leading
private mental health hospital delivering specialist treatment in general
psychiatry, addictions and eating disorders. Conference calls were
organized between the daughter of respondent no.2 and Dr. James
Arkell, a leading Psychiatrist at Nightingale Hospital, London and
only after the daughter of respondent no.2 was convinced and agreed
to undergo treatment at the said hospital and travel to London for the
same that her travel to London was finalized. Thereafter an
application for a Medical Visa was made to the U.K. High
Commission. Ms. „X‟ was granted a Medical Visa by the U.K. High
Commission after she personally appeared at the High Commission in
New Delhi. True copy of the Medical Opinion of Dr. Kavita Arora
has been filed.
8. Respondent no.2 has pointed out that he travelled to London with his
daughter where she was admitted to the Nightingale Hospital on
22.01.2015 under Dr. James Arkell (Consultant and Psychiatrist). It
has also further been pointed out that Ms. „X‟ went through
psychiatric treatment for depression and Paranoid Schizophrenia at the
Nightingale Hospital for almost six weeks and showed considerable
signs of improvement in her medical condition. She was discharged
from the Nightingale Hospital on 03.03.2015. Upon her discharge,
however, she expressed a desire to continue to stay in London and
W.P. (Crl.) No.2527/2015 Page 9 of 23
undergo a course at the London School of Publishing. As per her
wish, she was enrolled for a ten week Sub-editing Course at the
London School of Publishing on 30.03.2015 which she subsequently
completed in July, 2015 with 65% marks. Besides attending the
course in Sub-editing, she also got enrolled for lessons in music from
Ms. Ida Griffiths, a teacher of contemporary music. True copy of the
e-mail dated 01.07.2015 issued by the London School of Publishing
informing her that she had passed her course has been filed. It is
stated that during this period of her stay, at the instance of his
daughter, the respondent no.2 arranged a hotel room for her at
Washington Hotel at London, a hotel owned by the friend of
respondent no.2 in order to make her stay comfortable and convenient.
It is during this period that she continued to undergo treatment under
Dr. Arkell at Nightingale Hospital and continued to consult him on a
weekly basis.
9. It has been stated that after completing the course in Sub-editing, Ms.
„X‟ expressed interest in staying on in London and pursuing another
course at the London School of Contemporary Music and got enrolled
for the same. The course was for a duration of eight weeks and was to
commence from 21.07.2015. True copy of letter dated 27.05.2015
issued by London School of Contemporary Music informing Ms. „X‟
of her enrolment has been filed. Ms. „X‟ returned to India on
29.06.2015 only to return to U.K. on 09.07.2015 on a student visa to
pursue the course in music. It is stated that as she wanted to now stay
in a student accommodation, the respondent no.2 made arrangements
W.P. (Crl.) No.2527/2015 Page 10 of 23
for her stay at a student accommodation called Nido Apartments
located at Kings Cross, London. During this time, she was in touch
with her mother and interacted with her over telephone and e-mail.
The course at the music school commenced on 21.07.2015. It is
stated that on the same day, she sent various Whatsapp messages to
respondent no.2 which suggested that she had suffered a relapse and
had started to once again show symptoms of Paranoid Schizophrenia.
It was subsequent to this relapse that the respondent no.2 learnt that it
was at the instance of the petitioner that Ms. „X‟ had stopped taking
medication since the petitioner convinced her to believe that she was
perfectly fine and in need of no treatment. True copies of the
Whatsapp messages sent by Ms. „X‟ to respondent no.2 have been
filed.
10. It has further been stated that following the incident, Ms. „X‟
continued to show symptoms of paranoia. The respondent no.2
convinced her to visit Dr. Arkell immediately to seek his assistance.
On 24.07.2015, she consulted Dr. Arkell and after examining her
symptoms, he strongly recommended that she should take admission
in the hospital and offered her the services of hospital staff that she
already knew. When she declined to get herself admitted, she was
taken to the pharmacy by the Secretary of Dr. Arkell who ensured that
she left with a supply of medication. During this time, the respondent
no.2 was in constant touch with Dr. Arkell regarding his daughter‟s
treatment and was getting regular updates from him on email and on
phone as well. True copy of the email dated 24.07.2015 written by
W.P. (Crl.) No.2527/2015 Page 11 of 23
Dr. James Arkell has been filed. Dr. Arkell continued to engage her.
However, her cooperation for the treatment started to dwindle. Dr.
Arkell in his email dated 14.08.2015 informed the respondent no.2
that inspite of his intervention, Ms. „X‟ had refused to take her
medication and continue with her treatment and her behaviour
continued to grow more distracted and odd. It has further been stated
that respondent no.2 had contacted the Islington Crisis Team of the
National Health Service (NHS) to engage her at her apartment since
she was not keen to visit Dr. Arkell at the Nightingale Hospital. True
copy of the email dated 14.08.2015 from Dr. James has been filed.
11. It has also been stated that on 19.08.2015, the Islington Crisis Team
wrote to the respondent no.2 stating that they had contacted his
daughter and since she refused to work with them, they have referred
her for mental health assessment and if they feel that she is unwell,
then they will arrange for her to be admitted to hospital. It is stated
that his daughter continued to show signs of paranoia. She continued
to stay confined in her room without having any interaction with any
outsider. However, she was in constant touch with respondent no.2
during this period. On 21.08.2015, she wrote an email to the Editor of
a Newspaper in London which clearly demonstrated her delusional
state of mind. True copy of the email written by Ms. „X‟ has been
filed. It has been stated by respondent no.2 that when he was
informed that his daughter would be put through a mental health
assessment by the Islington Crisis Team, he made efforts to ensure
that such an assessment takes place at the Nightingale Hospital rather
W.P. (Crl.) No.2527/2015 Page 12 of 23
than an NHS facility to ensure her comfort since she knew the facility
and staff fairly well. To ensure that she is treated at the Nightingale
Hospital itself due to the trust shared by them, the respondent no.2
persuaded her to vacate her room and travel to Nightingale Hospital
on her own to get admitted. She was admitted to Nightingale Hospital
on 22.08.2015. Unfortunately, upon admission, she refused to engage
with doctors and continued to display symptoms of paranoia. She
continued to have delusions and talked about constant monitoring by
cameras and use of technology to read her mind. Upon her failure to
engage with the doctors. Dr. Arkell recommended an assessment
under Section 2 of the Mental Health Act, 1983(Act) to assess her
status. Pursuant to an examination by the NHS team under Section 2
of the Act, on 28.05.2015 the NHS decided that considering the
mental health of Ms. „X‟, she sought to be put through a detention
under the Act.
12. It has been pointed out that in exercise of the remedy provided under
Section 2 of the Act, Ms. „X‟ challenged the order of mental health
assessment before a Tribunal set up for this purpose. The Tribunal
convened a hearing which was attended by her as well as the
respondent no.2. All concerned parties including Ms. „X‟ and the
respondent no.2 were permitted to address the Tribunal. After a
detailed hearing, the Tribunal declined to set aside the order of
assessment. Since she continued to be uncooperative towards her
treatment, the NHS referred her case for a second assessment. After
carrying out a second review, on 23.09.2015 NHS recommended that
W.P. (Crl.) No.2527/2015 Page 13 of 23
she be detained for a period of six months i.e. until 22.03.2016 to
undergo hospitalisation under Section 3 of the Act.
13. It has been stated by respondent no.2 that he has been closely
monitoring the treatment of his daughter. He has been travelling to
London to be with her every couple of weeks. He was present with
her during her admission to Nightingale Hospital in January 2015. He
again visited her while she was enrolled for her courses at London.
He was also by her side during the hearing of her appeal against the
order of assessment passed under Section 2 of the Act. He travelled to
London to be with his daughter from 21.01.2015 to 28.01.2015;
07.03.2015 to 15.03.2015; 26.04.2015 to 03.05.2015 and‟16.09.2015
to 22.09.2015. True copies of the air tickets of respondent no.2 have
been filed. It is stated that the respondent no.2 has been in constant
touch with his daughter and talks to her on the phone multiple times
each day(sometimes upto eight to nine times a day). Besides, he was
also in touch with her through Whatsapp messages and email. True
copy of the mobile phone records of the respondent no.2 showing
frequent calls to his daughter has been filed.
14. It has further been stated by respondent no.2 that he has also been
communicating regularly with his daughter‟s doctor and her medical
team through telephone, email and Whatsapp. Regular updates have
been provided by her medical team at the Nightingale Hospital to him
and he was in complete knowledge of the treatment being provided to
her. It is stated that he has also been bearing all expenses of the
treatment of his daughter and was sparing no effort to ensure a speedy
W.P. (Crl.) No.2527/2015 Page 14 of 23
recovery. His primary concern has been for the health and wellbeing
of his daughter. Her doctor and medical team are of the view that her
continuous treatment is critical to her health, career and future
prospects and her continuous treatment will give her better odds at
recovery. It is stated that any interference or obstruction to her
treatment by the petitioner, as has been done in the past where the
petitioner convinced her to give up her medication on the pretext that
she is perfectly healthy, at this stage will be highly detrimental to her
mental health. It has been denied by the respondent no.2 that the
petitioner has been kept in the dark about the health of their daughter.
It has been stated that the petitioner has all along been informed of the
medical condition and treatment of their daughter through a common
acquaintance-Ms. Madhu Kalia, Advocate. It has been alleged that
despite having been diagnosed with Schizophrenia herself, the
petitioner rather than helping her daughter to deal with the medical
condition by encouraging her to undergo medication and therapy, has
instead been trying to convince her daughter that she is completely fit
and does not require any medication. It is alleged that on more than
one occasion, this has led to a deterioration in the condition of his
daughter and is highly detrimental to her mental health. True copy of
the sms messages sent by respondent no.2 to the petitioner through
Ms. Madhu Kalia, Advocate has been filed.
15. It has been alleged by the respondent no.2 that the petitioner‟s
attempts at disrupting the treatment of his daughter have been growing
in frequency. On 11.09.2015, the petitioner asked his daughter to
W.P. (Crl.) No.2527/2015 Page 15 of 23
write to this Court seeking an appropriate direction for her discharge
from the Nightingale Hospital. Even though the petitioner is aware
that his daughter is getting the best possible treatment Nightingale
Hospital, the petitioner persists and tries to convince her daughter to
abandon her treatment and return to India. True copy of Whatsapp
message dated 11.09.2015 sent by his daughter has been filed.
16. On 18.11.2015, he provided Dr. James Arkell a copy of the order
dated 04.11.2015 passed by this Court and requested him to provide
him a medical report on his daughter‟s treatment. It has been pointed
out that in response to the directions of this Court, Dr. James Arkell
has prepared a medical report detailing the medical history of his
daughter and the treatment that she is undergoing. True copy of the
Medical Report dated 19.11.2015 issued by Dr. James Arkell has been
filed.
17. The respondent no.2 has further stated that it is in the circumstances
stated above that his daughter is being treated at the Nightingale
Hospital in London. It is also stated that it is the view of her doctor
that she is benefitting from the treatment and lately has been showing
considerable improvement. It has further been stated that the daughter
of respondent no.2 is now willingly getting treated and since she is
showing signs of improvement, she wants to continue with the
treatment. It has been pointed out that she has told the respondent
no.2 that post-her treatment, she wants to stay on in London and
pursue further studies there. The respondent no.2 has stated that it is
in the best interest of his daughter that she completes her treatment for
W.P. (Crl.) No.2527/2015 Page 16 of 23
her mental condition at the Nightingale Hospital and any interruption
to her treatment may have adverse and long term consequences and
would undo all progress that she has made since her treatment
commenced in January, 2015.
18. We have heard the learned counsel for the parties, considered the
material placed on record and given out thoughtful consideration to
the matter.
19. Some undisputed facts which emerge based on the pleadings of the
parties are that marriage between the petitioner and respondent no.2
was solemnized on 26.04.1987. Two daughters were born out of their
wedlock. This petition pertains to Ms. „X‟, who is a major and was
born on 12.09.1989. Decree of divorce by mutual consent was
granted in the year 1998. Custody of both the daughters was handed
over to the petitioner, however, since 1998 the respondent no.2 has
been looking after both the daughters.
20. Respondent no.2 has claimed that Ms.X exhibited symptoms of a
psychiatric disorder since the year 2007 and was diagnosed with
paranoid Schizophrenia in the year 2008. A true copy of the OPD
card of Ms.X, issued by AIIMS, dated 12.12.2012 has been placed on
record.
21. The petitioner, who is the mother of Ms.X, has made the following
prayers in the present writ petition:
a) Directing Respondent No.1 to 2 to produce the daughter of
the petitioner i.e. Astha Sharma, a major, presently forced to
W.P. (Crl.) No.2527/2015 Page 17 of 23
undergo Mental Healthcare and presently admitted in
Nightingale Hospital for Mental Health, Room No.28,
Ground Floor, 11-19 Lisson Grove, Marleybone, London,
United Kingdom without her wishes and in a very hostile
environment, also facing harassment-physical and mental,
before this Hon‟ble Court to determine the propriety of her
confinement to the Nightingale Hospital in London and to
get a clear opinion of Astha Sharma for the same;
b) order the constitution of a Medical Board to determine if
there is any requirement of the treatment she is undergoing
at all and if yes, then whether the same could be
administered to her at New Delhi;
c) direction to the Respondents No.1 and 2 to immediately
provide all the Medial documents/reports of the said Astha
Sharma to the Petitioner through this Hon‟ble Court;
22. The complaint of the petitioner is that respondent no.2, father, has
forced Ms.X to live in London, he did not arrange for her proper stay
and she was left stranded in a hotel without money in the month of
January, 2015. The petitioner subsequently learnt on receiving
telephonic calls, text messages and emails from Ms.X that she has
been shifted to Nightingale Hospital in London against her wishes.
23. Ms.X complained to the mother about her distress and harassment at
the hospital. She also complained that no family member was present
to take care of her. The daughter has been alienated and there is no
one to ensure her safety and well being. It has also been complained
that neither the hospital authorities nor respondent no.2, father, is
providing any information to the petitioner about the exact medical
condition of Mx.X and treatment given to her. Another complaint
W.P. (Crl.) No.2527/2015 Page 18 of 23
made by the petitioner is that despite the fact that the medical
treatment is available in India, where Ms.X would also receive
psychological support by the family, respondent no.2 has left a young
girl in an alien country. Reliance is placed on emails written, text
messages written by Ms.X to her mother. In this backdrop, the
questions, which arise for consideration before this Court, are
(i) whether Ms.X, who is a major, was sent to London against her
wishes? and (ii) whether she was suffering from any psychological
disorder and if yes whether it was necessary to admit her in
Nightingale Hospital for treatment?
24. We may note that during the pendency of this writ petition, as noticed
in the order dated 3.8.2016, Ms.X was to return to Delhi for stamping
of her visa around the second week of September, 2016. Learned
counsel for respondent no.2 had undertaken to inform the counsel for
the petitioner about the specific dates. It was also noticed that the
petitioner had been speaking and interacting with Ms.X through voice
and visual internet. On 27.9.2016, the following order was passed:
“The petitioner and the respondent No. 2 are present in
person. Mr. Atul Sharma, Advocate, on instructions from the
respondent No. 2, states that Ms. Astha Sharma is to join a
course in London on 29th September, 2016. It is also stated that
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Ms. Astha Sharma would be in Delhi on or about 10
December, 2016.
Ms. Geeta Sharma, who is present in person, states that
she has been in touch with Ms. Astha Sharma through internet
and would continue to remain in touch with her. In case Ms.
Geeta Sharma has any difficulty, she will file an appropriate
application in the Court. We hope and trust that the statement
made by the respondent No. 2 would be adhered to and Ms.
W.P. (Crl.) No.2527/2015 Page 19 of 23
Geeta Sharma would have the liberty to meet and interact with
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Ms. Astha Sharma on or about 10 December, 2016.
Mr. Atul Sharma, Advocate, on instructions, has also
stated that the respondent No. 2 would not have any objection in
case Ms. Astha Sharma expresses her desire to stay and reside
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with the petitioner during her visit to India. Re-list on 15
December, 2016.”
25. This Court was informed on the next date of hearing i.e. 15.12.2016
that a meeting took place between the petitioner and her daughter
when the daughter had travelled to India between 21.11.2016 to
29.11.2016. Since the petitioner has been in constant touch with
respondent no.2 and also had met respondent no.2 during the period
she had travelled to India between 21.11.2016 to 29.11.2016, we are
of the view that Prayer (a) made in this writ petition with regard to
production of Ms.X before this Court, stands satisfied. The fact that
despite the meeting with the mother Ms.X has travelled back to the
United Kingdom out of her own free will is proof enough that her stay
in the United Kingdom is not against her own wishes and it is with her
consent and concurrence.
26. Another prayer made in this writ petition is a direction to constitute a
medical board to determine if there is any requirement of treatment
and, if yes, whether the same could be administered at New Delhi. A
direction is also sought to provide medical documents/reports to the
petitioner. Although once, Ms.X has met her mother during her visit,
the remaining prayers made in this writ petition also stand satisfied but
to satisfy the conscience of this Court we had, by an order dated
W.P. (Crl.) No.2527/2015 Page 20 of 23
4.11.2015 while granting time to respondent no.2 to file reply, directed
respondent no.2 to file supporting documents and necessary
documents clearing detailing the treatment being provided to Ms.X.
Respondent no.2 has filed a medical report dated 19.11.2015 issued by
Dr.James Arkell. On 3.12.2015, we had directed respondent no.2 to
seek an opinion of the attending Doctor to show the timeframe with
regard to the treatment of Ms.X and the timeframe in which the
patients are likely to be discharged from the hospital. This Court also
directed that if possible the Doctor be requested to opine whether it
would be in the interest of the patient to travel to India and whether
the medicines, which are being administered to her, are having a
positive effect. This Court was informed that a report of the treating
Doctor had been filed on 11.1.2016. The petitioner had also placed on
record opinion of Dr.Unni Krishnan.
27. We were informed on 1.4.2016 that Ms.X had been discharged from
hospital on 29.3.2016 and staying on her own, however, a Court team
would visit her everyday and she would revert back to the hospital
once a week. Along with the short affidavit filed by respondent no.2,
he has placed on record true copies of the OPD card of Mx.X issued
by AIIMS for December, 2012; medical opinion of Dr.Kavita Arora
pertaining to Ms.X dated 22.1.2015; letters of Dr.James Arkell dated
24.7.2015 and 13.11.2015, 14.8.2015 and 19.8.2015; medical report
dated 19.11.2015; opinion of Dr.James Arkell dated 5.1.2016; medical
report of Dr.James Arkell dated 29.1.2016; report of Dr.James Arkell
dated 25.4.2016 which are enough prima facie evidence to show that
W.P. (Crl.) No.2527/2015 Page 21 of 23
Ms.X is suffering from paranoid Schizophrenia and her father,
respondent no.2, is providing medical care and attention to her.
Having regard to the aforesaid medical opinions, OPD card of AIIMS
of Ms.X and opinion of Dr. Unni Krishnan, copies of which have been
provided to the petitioner, the prayers (b) and (c) made in the writ
petition also stand satisfied.
28. In the case of Girish v. Radhamony K. & Ors. , reported at (2009) 16
SCC 360, a writ petition under Article 226 of the Constitution of India
was filed by the petitioner, alleging therein that the minor daughter
had been kidnapped. When the daughter appeared and informed the
Court that she was a major yet the High Court continued to direct
registration of a case. The Supreme Court of India held as under:-
“.... in our opinion, the High Court had no jurisdiction to
give this direction. In a habeas corpus petition, all that is
required is to find out and produce in court the person who
is stated to be missing. Once the person appeared and she
stated that she had gone of her own free will, the High
Court had no further jurisdiction to pass the impugned
order in exercise of its writ jurisdiction under Article 226
of the Constitution. ”
29. Having regard to the facts of the case and taking into consideration
that Ms.X had met her mother and during the meeting nothing has
been reported to the Court including that Ms.X is being forced to stay
in London or being forced for medical treatment; and also taking into
consideration the medical record, as directed by this Court from time
to time, has been produced and copies thereof stand supplied to the
petitioner, we are of the considered view that no further orders are
W.P. (Crl.) No.2527/2015 Page 22 of 23
required to be passed in the present petition and the same stands
disposed of.
CRL.M.A. 14648/2016 (For directions)
30. Application stands disposed of in view of the order passed in the writ
petition.
G. S. SISTANI, J.
VINOD GOEL, J.
th
MAY 30 2017/ ka/pst
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