What is difference between mental illness and mental retardation?

The three-Judge Bench referred to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, '1995 Act') and opined that in the said Act also "mental illness" has been defined as mental disorder other than mental retardation. The Court also took note of the definition of "mental retardation" under the 1995 Act. The definition read as follows:

2(r) 'mental retardation' means a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence.

31. The Court also apprised itself that the same definition of "mental retardation" has also been incorporated Under Section 2(g) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. Analysing the provision of Act. The Court opined that while a guardian can make decisions on behalf of a "mentally ill person" as per Section 3(4)(a) of the 1971 Act, the same cannot be done on behalf of a person who is in a condition of "mental retardation". Thus, the difference between the 'mental illness' and 'mental retardation' as recognized in law, was emphasised.

32. The three-Judge Bench proceeded to address the 'best interest' of the victim and invocation of the doctrine of parens patriae. In that context, it held:

As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.

33. After so stating, the Court adverted to the facts of the case and came to hold that though the victim had been described as a person suffering from mild mental retardation, that did not mean that she was entirely incapable of making decision for herself. It discarded the 'substituted judgment' test, which requires the Court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10463 of 2017

Decided On: 17.08.2017

 Z  Vs  The State of Bihar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ.

Citation: ( 2018) 11 SCC 572

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Guidelines on termination of pregnancy of woman prisoners

In view of the above, directions are given as under:--

"1. (i). Upon admission into a jail/prison, every woman prisoner of child bearing age shall undergo a Urine Pregnancy Test (UPT) within 5 days of being admitted to jail.
(ii) Every woman prisoner of child bearing age shall undergo a second UPT approximately 30 days after admission into jail/prison in case the UPT under 1(i) is not positive.
2. In case, the urine pregnancy test is positive, the Medical Officer shall inform the prisoner that she can get the pregnancy terminated if her case falls under Section 3 or 5 of The Medical Termination of Pregnancy Act.
3. If the prisoner indicates she wants to terminate the pregnancy, her statement should be recorded by the Jail Authority or Medical Officer to that effect and the record of the statement be maintained. A copy of that statement be forwarded with the prisoner when she is referred to the hospital.
4. If the prisoner indicates that she wants to terminate the pregnancy, the Medical Officer and Jail Superintendent shall ensure that woman prisoner is sent on urgent basis to the nearest Government Hospital to help her terminate the pregnancy. It is made clear that they shall not wait for any order of the Court if the case falls under Sections 3 or 5 of the Act.
5. Every prison shall maintain "Prison OPD Register" where details of every prisoner examined either by the prison medical officer/doctor or visiting doctor are entered. Such register shall contain in brief (i) the name of the prisoner; (ii) convict or undertrial number, (iii) the medical complaint of the prisoner; (iv) the advice of the doctor (including referral of the patient to the nearest government Hospital) and (v) the date for follow up when necessary. The Prison OPD Register be produced for inspection of the Sessions Judge/Magistrate deputed to visit the prison.
6. The Jail Superintendent and escort division to ensure that such prisoner as well as other prisoners needing medical treatment in a hospital are sent to the hospital as far as possible by 8:30 a.m. i.e when O.P.D opens.

7. After discharge from the said hospital, the prison authorities shall take due care of the woman prisoner until she fully recovers from the medical termination of her pregnancy."

IN THE HIGH COURT OF BOMBAY

Suo Motu Public Interest Litigation No. 1 of 2016

Decided On: 19.09.2016

 High Court on its own Motion
Vs.
 The State of Maharashtra

Hon'ble Judges/Coram:V.K. Tahilramani and Mridula Bhatkar, JJ.

Citation:2017 CRLJ218 Bom

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Whether unilateral termination of pregnancy by wife amounts to cruelty to husband?

Admission by the respondent in the instant case of her suffering
from depression; denial by her in the instant petition of leaving her
matrimonial house without informing to visit Vaishno Devi on March 20,
2007, but proved in the Guardianship Petition are telling evidence in
favour of the appellant and against the respondent and we see no reason
to disbelieve the appellant regarding the rest. It is thus not a simple case
of oral evidence which would be in the category of word of mouth versus
word of mouth. The unilateral termination of the second pregnancy by
the respondent proved by Ex.PW-1/5 adds on to the mental torture
inflicted upon the appellant.
12. Regretfully, these aspects have been overlooked by the learned
Judge, Family Court.
13. The totality of the evidence establishes not only mental cruelty but
even desertion and thus the appellant would be entitled to the marriage 
being annulled by grant of decree for divorce on grounds of cruelty as
well as desertion.


 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Date of Decision : November 21, 2016
MAT(FC) No.23/2015 
SANJIV KUMAR JINDAL v ANIL KUMARI @ NEELAM 
CORAM:
MR. JUSTICE PRADEEP NANDRAJOG
 MR.JUSTICE YOGESH KHANNA

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Whether victim includes child born out of Rape with minor?

Para 2 (d) of the Scheme defines Victim as follows: 
"victim means a person who himself has suffered loss or injury as a result of crime and requires rehabilitation and includes his dependent family members." 
We may add here that this definition of victim should also include the child born out of illegal act of sexual abuse with minor. The new born child is a victim in the sense that she/he is forced to live a life of shame and stigma without his/her fault. She/he is brought in this world destined to suffer because while the father refuses to lend his name to the child, the mother abandons her/him for social reasons. Injury to reputation is a violation of right to live with dignity. The child is the victim of circumstances. She/he definitely suffers injury of being left in this world to fend for himself without any support. She/he requires rehabilitation, therefore, we have termed the child born on 26.10.2015 as a second victim in our discussion. 
ALLAHABAD HIGH COURT
LUCKNOW BENCH
Writ Petition No.8210 (M/B) of 2015. 
"A" through her Father "F" 
Versus 
State Of U.P. Thru Prin. Secy., Med. & Health Ser. & Ors. 

Hon'ble Shabihul Hasnain, J. 
Hon'ble D. K. Upadhyaya, J. 

(Delivered by Shabihul Hasnain, J.) 
Dated:03.11.2015. 
Citation:AIR 2016(NOC)396 ALL

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Guidelines of High court in respect of termination of pregnancy of Rape victim

In view of the foregoing discussion, interim directions are

issued as under:

(i) Principal Secretary, Department of Health & Family

Welfare, Government of Haryana, shall deposit a sum

of `5000/- per month in the account of petitioner No.

1 for food and medical expenses. The deposit shall be

made on or before 7th of each calendar month w.e.f.

01.06.2016 for one year.

(ii) The Chief Medical Officer, Nuh and the Medical

Superintendent of Civil Hospital-cum-SHKM

Government Medical College Malhar shall depute a

senior obstetrician/ gynecologist to examine petitioner

No. 1 from time to time and give proper advice in the

matter of medicine and due medical facilities of

health professionals i.e nurses etc.. This will be in

addition to the help and assistance to be provided to

Petitioner No. 1 by AIIMS, New Delhi.

(iii) The Medical Superintendent of AIIMS shall also

provide the adequate medical help as aforesaid to

victim-petitioner No. 1.

(iv) Whenever Petitioner No. 1 visits for medical checkup

and counselling , the concerned doctors shall deal

with her sympathetically. The counselling shall be

provided to her regularly as per the mental health of

petitioner No. 1 and the requirement for the same in

view of the alleged threat of suicide by her.

(v) The State of Haryana shall also deposit an amount of

Rs.5 lakh in fixed deposit in the name of petitioner

No. 1 as damages and expenses as the officers at the

helm of affairs failed to act with due diligence. This

amount will be in addition to the other claim of

petitioner No. 1 under the provisions of law. The said

amount shall remain in fixed deposit in a scheduled

Bank; however, the interest accruing on it can be paid

to petitioner No.1 only after 31.06.2017, by the

concerned bank, if demanded by petitioner No. 1.

(vi) It is clarified that the amounts awarded by this Court

are in addition to the entitlement as per provisions of

Code of Criminal Procedure.

(vii) This Court has already issued directions in various

cases as Kavita, Vijender and Bashir Khan (supra),

referred in the earlier part of the judgement. It is

emphasized that each of those directions should also

be followed in letter and spirit.

(viii) The Central Government is advised to consider

making amendments to the Medical Termination Of

Pregnancy Act, 1971 and clarify in so many words to

the doctors that they will not be unnecessarily

prosecuted if they act in accordance with the rules in

good faith to save the life of a victim of rape or to

prevent grave injury to her physical and mental

health. Termination of pregnancy in good faith which

results from crime is otherwise permitted under the

provision of MTP Act.

(ix) Seminars for investigating agencies, doctors, lawyers

and judicial officers who have occasion to deal with

such cases should be organized periodically. They

should be sensitized about the urgency and immediate

need of counselling and other medical assistance

required to a rape victim. The respective departments

having control over these agencies should regularly

update its officers/officials about the legal provisions

and settled law on the subject.

(x) The Refresher Courses for the members of the

Superior and Subordinate Judiciary of the States of

Punjab, Haryana and U.T.Chandigarh be held to make

them aware of the provisions of the MTP Act and

urgency in such cases. In order to ensure that if any

case is brought before the gestation period reaches 20

weeks, victim be informed about her choice to seek

termination at the earliest.

(xi) The copy of this judgment be sent to the offices of

Advocate Generals of Punjab and Haryana and the

Standing Counsel for U.T., in order to ensure that if,

and when, any case is brought to Court for passing of

any orders under the MTP Act, the said case can be

determined on the first day itself by sending the

woman to the medical board immediately for quick

action if possible under the provisions of law. The

need for filing of reply should not arise so as to avoid

wasting of precious time available with the pregnant

victim.

(xii) The Registry is directed not to mention the name of

rape victim in the cause list, judgment order, but they

may refer to her name by mentioning the first

alphabet of her name.

(xiii) The Counsel representing the victim of rape are also

requested not to disclose the identity of victim in the

petition in the head-note of petition. They may also

write the first alphabet of name of the victim and may

quote 'name withheld' in particulars.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

 CWP-6733-2016

 Date of Decision: 30.05.2016

R (name withheld) and another

 ... Petitioner(s)

Versus

State of Haryana and others

 ... Respondent(s)

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

 DHALIWAL

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