Disposed

Mrs. Shruthi Lakshmi M. K. v. Dr. Ganesh. T. Bhat

Karnataka HC21 Jun 2024WP/6/2023

Case brief

AI extract

What is this about?

Wife's mother sought appointment as next friend in husband's divorce petition alleging wife's mental condition; Family Court dismissed without inquiry. High Court held inquiry under Order XXXII Rule 15 CPC was required given such allegations, set aside the dismissal and remanded for fresh decision with liberty to adduce evidence.

What the court decided

AI extract

Mrs. Shruthi Lakshmi M. K. Vs Dr. Ganesh. T. Bhat — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:22427 WP No. 6 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 6 OF 2023 (GM-FC)

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BETWEEN:

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MRS. SHRUTHI LAKSHMI M.K., W/O DR. GANESH T. BHAT, AGED ABOUT 34 YEARS, PRESENTLY R/AT : 'AASARE' HARADI, PUTTUR - 574 201.

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REPRESENTED HEREIN BY HER MOTHER AND PROPOSED NEXT FRIEND/GUARDIAN SMT. USHA DEVI K.N., W/O M. KESHAVA BHAT, AGED ABOUT 60 YEARS, R/AT: 'AASARE', HARADI, PUTTUR- 574 201.

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SMT. USHA DEVI K.N., W/O M. KESHAVA BHAT, AGED ABOUT 60 YEARS, R/AT: 'AASARE', HARADI, PUTTUR - 574 201. …PETITIONERS

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(BY SRI. ANANDARAMA K., ADVOCATE)

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AND:

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DR. GANESH. T. BHAT, S/O LATE TULASIDAS BHAT, AGED ABOUT 45 YEAS R/AT: 'GANESH PRASAD' NEAR URVA MARKET, MANGALURU - 575 006.

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…RESPONDENT

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(BY SRI. K. RAVISHANKAR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN M.C.NO.577/2021 PENDING ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, D.K., MANGALURU AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order passed on I.A.No.V in M.C.No.577/2021 dated 13.12.2022 by the Principal Judge, Family Court, D.K.Mangaluru, the wife is before this Court.

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The husband has filed M.C.No.577/2021 seeking

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divorce on the ground of mental cruelty. In every paragraph of the petition, he had stated about the mental condition of the wife, the manner in which she is voilately responding and she also refused to take treatment and how it has made his life miserable. Then the mother of the wife i.e., the mother-in-law had filed I.A.No.V under Order XXXII Rule 3(2) read with Section 151 of CPC with a prayer to appoint her as the next friend of respondent-wife and also had filed I.A.No.IV under Section 13 of the Family Courts Act, 1984. The Court below dismissed the same by order dated 13.12.2022. While dismissing the application, the Court has observed that it is the

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case of the mother that the husband made allegations against the wife stating that she is suffering from unsound mind, as such, these applications have been filed. For that, objections were filed by her husband stating that he has not made any such allegations that she is suffering from an unsound mind and he had objected to the said applications.

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After hearing both the parties, the Court dismissed the applications observing that in view of Order XXXII Rule 15 of CPC, it is applicable in the case of a party, who is an unsound mind before appointing any other person as guardian on behalf of the defendant on the ground of unsoundness of mind, it is necessary for the Court to satisfy itself about the unsound mind of the defendant. Merely because an application is filed under Order XXXII Rule 3(2) read with Section 151 of the CPC, without satisfying about the unsound mind of the defendant, the guardian cannot be appointed. The Court has further observed that the mother has not filed a single medical document to show that the daughter is suffering from unsoundness of mind nor has she stated that her daughter is suffering from unsound mind and that she requires to be

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appointed as a guardian. Under these circumstances, the Court had dismissed I.A.No.5 and consequently, I.A.No.4.

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Learned counsel appearing for the petitioner submits that when so many allegations with regard to the state of mind and the mental condition of the wife are made by the husband and when the application is filed under Order XXXII Rule 15 of CPC, it is the duty on the part of the Court to conduct an inquiry and satisfy itself whether the respondent-wife is in a position to defend herself or guardian needs to be appointed. Without doing any such exercise, the Court had dismissed the applications.

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Learned counsel for the petitioner has relied on the judgment of the Hon'ble Apex Court in the case of Kasturibai and others v. Anguri Chaudhary¹ wherein the Hon'ble Apex Court has observed that the Court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but it is found by the Court on inquiry to be incapable of protecting his or her interest when suing or being sued by

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1 (2003) 3 SCC 225

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reason of any mental infirmity, an appropriate order thereunder can be passed. It is also observed that under the said fact, the respondent did not contend that Appellant 1 is of unsound mind and the respondent herself had filed an application before the trial Court for holding an inquiry to the effect that she suffers from mental infirmity. Placing reliance on this judgment, the learned counsel submits that the Court below ought to have conducted a thorough inquiry in the matter.

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Then, he had relied on the judgment of the Madras High Court in the case of Shanmughasundaram (unsound mind) by guardian mother, Bagya Rathnamma v. C.Ponnusami Mudaliar and Another² wherein the Madras High Court has observed that in the said case no judicial enquiry was conducted and the application for guardianship has been rejected. It is done in a unceremonious manner and the Court below has not exercised its jurisdiction under Order XXXII Rule 15 of CPC and accordingly, allowed the petition.

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He also relied on the judgment of the Madras High Court in the case of Hemalatha L. v. N.P.Jayakumar³ ,

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2 1979 (2) MLJ 190

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3 AIR 2008 MARAS 98

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wherein the scope of Order XXXII Rule 15 of the CPC has been elaborately discussed by the Court at para 21 and observed that it is the case of the husband that the wife is suffering from mental disorder, the trial Court, in view of Section 10 of the Family Courts Act, 1984 should have taken recourse to the procedure available under Order XXXII Rule 15 of CPC and in the said case, the husband having alleged that the wife is a person of unsound mind, ought to have filed an application for appointment of guardian, because even on his own pleadings, the wife, being a person of unsound mind, could not defend herself. The Court has further observed that the trial Court ought to have satisfied itself whether the wife is a person of unsound mind or not. If the trial Court on the basis of materials placed before it, finds that the allegations of the husband are not sustainable, there is no need to appoint a guardian to defend the wife. On the other hand, if it is satisfied that the wife is a person of unsound mind, it should appoint a guardian to defend her. Further, the Court has observed that the primary duty of the Court is to see that truth is arrived at.

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Placing reliance on these judgments, learned counsel submits that when an application is filed by the mother under

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Order XXXII of Rule 15 of CPC, an inquiry ought to have been conducted by the Court. The Court is bound to conduct an inquiry even without an application from the mother. Based on the allegations made by the husband in the petition, the Court ought to have taken up an inquiry and if the Court feels that a guardian is required under the circumstances ought to have appointed a guardian as contemplated under Order XXXII Rule 15 of CPC.

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Learned counsel appearing for respondent submits that infact when the notice is issued by husband, a reply notice has been given and she appointed an advocate to contest the matter. It is submitted that every mental status does not amount to an unsound mind and the appointment of a guardian is not required. He submits that in this case, the wife had not filed the applications, but the mother had filed and the Court had rightly dismissed the applications and no medical documents are filed to show that she is suffering from any kind of mental illness. He had relied on the judgment of the Rajasthan High Court in the case of Smt.Sunita Sajnani v.

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Ratan Kumar⁴ and submits that in every case of mental inability, will not require the appointment of a guardian and does not amount to an unsound mind.

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He also relied on the judgment of the Punjab and Haryana High Court at Chandigarh in the case of Vicky Soni v. Shalini⁵ and submits that in a similar set of fact, the Court has observed that whether the wife is suffering from unsound mind or not, would be decided in the course of trial. It is submitted that the Court below had rightly dismissed the applications and no grounds are made out to set aside the order passed by the Court.

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Having heard the counsels on either side, perused the entire material on record. The admitted facts in this case are that the husband had filed M.C.No.577/2021 seeking divorce on the ground of mental cruelty. This Court has perused the petition filed by the husband seeking divorce and on a perusal of the said petition, it discloses that at every paragraph the husband has described the mental status of the wife and now, it was impossible for him to lead marital life with her, what are

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4 1998 WLC (RAJ) UC 17

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5 C.R.No.6973/2012(O&M)

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all the treatment she is undergoing and the treatment she was refused to take and he has described each and every incident that has taken place and all the instances involved around the mental status of the wife. It is even stated that she was so aggressive and violent and that she has even physically assaulted the husband.

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The wife's mother had come up with the application under Order XXXII Rule 3(2) read with Section 151 of the CPC. Learned counsel for respondent argues that it is not filed by the wife, but it is filed by the mother of the wife and no medical records are filed. It is not even stated that she is suffering from any kind of mental illness, but based on the allegations made by the husband in the petition, the application is filed. As such, it is not maintainable. This Court is not able to appreciate the said contention raised on behalf of the respondent for the reasons stated below. Before dealing with the said submissions, it is appropriate to look at the provision under Order XXXII Rule 15 of CPC which deals with the case of

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the persons who were adjudged to be of unsound mind or the persons though not so adjudged, who are found by the Court

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on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.

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Now in this case, looking at the allegations made by the husband and based on them, without going into the other aspects, it appears that the wife was undergoing a lot of mental disturbance and as to whether she would be in a position to conduct the case on her own or she is required to represent by her guardian has to be looked into by the Court. Though it is stated in the objections to the I.A. that husband never stated that she is suffering from unsound mind, the kind of instances which the husband has narrated are sufficient to come to the conclusion that things are not alright with the wife. Without going into the technicality as to whether the application is filed by the wife or the mother or not filed by the husband having made so many allegations for the appointment of a guardian, it is the bounden duty of the Court under facts and circumstances of the case to look into the same and whatever is the nature of application i.e., filed before the Court, instead of dismissing it straight away stating that the mother has not stated that her daughter is suffering from unsound mind, looking at the kind of allegations made in the petition it is appropriate for the Court

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to conduct an inquiry in that regard, but no such inquiry is conducted by the Court. The husband has given the names of the Doctor and the kind of treatment that has taken, the Court has to examine the wife as to what is her mental state.

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Learned counsel for the petitioner submits that, infact when the matter came up earlier, the Co-Ordinate Bench of this Court asked the husband to place the medical records and it is stated that those medical records are with him and he would be placing them on record. At this stage, this Court is not inclined to look into those medical records. Considering all these aspects, this Court deems it appropriate to set aside the order and remand the matter to the Court below and before the Court below, all the relevant documents can be filed by the parties.

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Accordingly, this Court is passing the following:

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ORDER

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