The High Court held that the Family Court Ernakulam set aside its order appointing a guardian without proper enquiry following an objection, mandating a fresh examination under Order XXXII Rule 15 CPC.
The impugned order appointing the mother as guardian was set aside, and the matter remanded to the Family Court for a fresh enquiry under Order XXXII Rule 15 CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938
OP (FC).No. 4613 of 2013 (R)
AGAINST THE ORDER/JUDGMENT IN OP 1314/2012 of FAMILY COURT, IRINJALAKUDA DATED
PETITIONER(S):
SMT.SUMITHA, AGED 26 YEARS, DAUGHTER OF SRI, KUNDAI, ARAKKAL HOUSE, NENMANIKKARA VILLAGE, ERAVAKKAD DESOM, THRISSUR 680301
BY ADVS.SRI.ANIL S.RAJ SMT.P.A.SULEKHA SMT.K.N.RAJANI SRI.J.VIVEK GEORGE
RESPONDENT(S):
1. SRI.RAJESH, AGED 31 YEARS, S/O SRI. UNNI, KUNDEPARAMBIL OUSE, CHITTISSERY DESOM, NENMANIKKARA VILLAGE, 680301
Addl. 2. JAYASREE
W/O.UNNI, AGED 53 YEARS, KUNDEPARAMBIL HOUSE, CHITTISSERY DESOM, VENMANIKKARA VILLAGE, THRISSUR.
(ADDL.2 IS IMPLEADED AS PER ORDER DATED 10/1/2014 IN IA NO.359/2014)
RADDL.2 BY ADV. SRI.SEBY JOSEPH
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02-032017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No. 4613 of 2013 (R) -----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE OP NO 1314/2012 PREFERRED BY THE PETITIONER BEFORE THE FAMILY COURT, IRINJALAKUDA, DATED 10-04-2012
EXHIBIT P2 TRUE COPY OF THE I.A NO 596/2012 IN OP NO 650/2012 PREFERRED BY THE RESPONDENT DATED 24-09-2012
EXHIBIT P3 TRUE COPY OF THE OBJECITON IN I.A NO 596/2012 FILED BY THE PETITIONER DATED 19-12-2012
EXHIBIT P4 TRUE COPY OF THE I.A NO 596/2012 OF THE HONOURABLE FOAMILY COURT, IRINJALAKUDA DATED 27-09-2013
RESPONDENT(S)' EXHIBITS NIL
Rp
//TRUE COPY//
PS TO JUDGE
A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.
=========================== OP(FC) No. 4613 of 2013
==================
Dated this, the 2nd day of March, 2017
J U D G M E N T
Shaffique, J.
This OP is filed challenging Ext.P4 order by which the Family Court had appointed the mother of the respondent as guardian. OP No.1314/12 has been filed by the petitioner seeking return of gold ornaments and money paid at the time of marriage. Respondent filed IA No.596/12 through his mother under Order XXXII Rule 15 of Code of Civil Procedure inter alia contending that her son was suffering from mental illness at the time of marriage and therefore she should be appointed as guardian of the respondent. The Family Court by the impugned order allowed the application, which reads as follows:-
“This petition is filed under Order 32 and Rule 3 of CPC.
Guardian present. Counter petitioner also present. Heard. Produced necessary medical records. Hence I am convinced, prayer is allowed.”
OP(FC) No.4613/13
-:2:-
OP(FC) No.4613/13
-:3:-
did not conduct any enquiry into the matter and just relied on a certificate issued by the Doctor despite the objection raised by the respondent. Learned counsel submits that this is a similar situation wherein when an objection has been raised, without conducting proper enquiry and merely relying upon the medical records, the impugned order had been passed. When the statute contemplates an enquiry to be conducted in terms of Rule 15, though it need not be so elaborate, the Family Court is bound to conduct appropriate enquiry and pass a speaking order. The impugned order by itself would show that no particulars are mentioned regarding the manner in which the parties were heard, the contents of the medical records which had been relied upon and no particulars are shown.
Accordingly, this OP(FC) is disposed of as under:-
(ii) The Family Court shall reconsider IA No.596/12 after
OP(FC) No.4613/13
-:4:-
conducting necessary enquiry as contemplated under Order XXXII Rule 15 and pass an order within a period of three months from
the date of receipt of a copy of this judgment.
Sd/-
A.M. SHAFFIQUE, JUDGE
Sd/-
K.RAMAKRISHNAN, JUDGE
Rp2/3/2017
//True Copy//
P.S to Judge
2 issues framed by the court
Whether a fresh enquiry was required under Order XXXII Rule 15 CPC before appointing a guardian?
Was the Family Court obliged to conduct an enquiry after an objection arose regarding the respondent's mental illness?
Colour shows how this judgement treated each authority
Maideen Bava Rawther v. John XavierReferred¶41
Maideen Bava Rawther v. John Xavier (1990 KHC 505)
2 provisions across 2 enactments
SUMITHA
RAJESH
JAYASREE
AM SHAFFIQUE
K RAMAKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
AM SHAFFIQUE and K RAMAKRISHNAN
Parties & counsel
