Remanded

Jimshith Lal, v. C.K Shabeena

Kerala HC5 Nov 2018OP (FC)/495/2018

Case brief

AI extract

What is this about?

The Kerala High Court quashed the Family Court orders dismissing applications for appointing a guardian and summoning medical records. It held the lower court failed to conduct the mandatory inquiry under Order XXXII Rule 15 CPC. The matters were remanded for fresh consideration.

What did the court decide?

The orders dismissing IA No. 546/2018 and IA No. 1193/2018 were quashed and the matter remanded to the Family Court for fresh inquiry.

Jimshith Lal, Vs C.K Shabeena — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY ,THE 05TH DAY OF NOVEMBER 2018 / 2ND KARTHIKA, 1940

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OP (FC).No. 495 of 2018

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AGAINST THE ORDER IN IA NO.546/2018 AND I.A.NO.1193/2018 IN OP 360/2018 of FAMILY COURT,KOZHIKODE DATED 31-07-2018

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PETITIONER:

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JIMSHITH LAL, AGED 34 YEARS S/O.M.N.BABU, SREELAKAM, ULLATHIL THAZHAM, CHEVAYUR AMSOM, DESOM P.O., CHEVAYUR, KOZHIKODE - 673 017, (MEDICAL COLLEGE PSL).

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BY ADV. MATHEWS K.UTHUPPACHAN

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RESPONDENTS:

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1 C.K SHABEENA, AGED 28 YEARS (INSANE PERSON), D/O.VELAYUDHAN C.K., UTHRADAM, CHERUVATTUKUNI, VENGALAM, P.O.-673 303, CHEMANCHERI VILLAGE, KOYILANDY TALUK, C.K.SHABEENA (INSANE PERSON), REPRESENTED BY GUARDIAN FATHER, 2ND RESPONDENT VELAYUDHAN.

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VELAYUDHAN C.K., S/O KORAPPAN, 2 AGED ABOUT 58 YEARS, 'UTHRADAM', CHERUVATTUKUNI, VENGALAM P.O, CHEMACHERI VILLAGE, KOYILANDY-673303 (KOYILANDY TALUK) BY ADV. SRI.E.NARAYANAN

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24.10.2018, THE COURT ON 05.11.2018 PASSED THE FOLLOWING:

O.P.(FC) No495/2018

“CR”

C.K.ABDUL REHIM

R.NARAYANA PISHARADI, JJ. ************************** O.P.(FC) No.495 of 2018

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Dated this the 5^th day of November, 2018

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JUDGMENT

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R.Narayana Pisharadi, J

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The petitioner is the husband and the first respondent is the

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wife. The second respondent is the father of the first respondent.

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The petitioner has filed O.P.No.360/2018 in the Family Court for granting a decree of declaration that his marriage with the first respondent is null and void. His plea is that the first respondent is a person of unsound mind and that she was having mental illness even before the marriage and that the marriage was solemnised suppressing that fact.

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The petitioner filed the application I.A.No.546/2018 for appointment of the second respondent as the guardian of the first respondent. The respondents filed objection to that

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O.P.(FC) No495/2018

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application contending that the first respondent is not suffering from any mental illness. As per Ext.P7 order, the Family Court dismissed the application I.A.No.546/2018. The aforesaid order reads as follows:

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“Heard both side. It is seen prima facie that there is no evidence to show that R1 is an insane person. She can very well conduct her case. Hence petition dismissed.”

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The petitioner had also filed another application as

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I.A.No.1193/2018 for summoning documents from a hospital

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relating to the treatment of the first respondent for mental illness. As per Ext.P8 order, the Family Court dismissed that application also. Ext.P8 order reads as follows:

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“IA 546/2018 dismissed, hence this IA also dismissed.”

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The petitioner has challenged Exts.P7 and P8 orders passed by the Family Court.

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We have heard learned counsel for the petitioner and also the respondents.

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The application I.A.No.546/2018 is filed by the petitioner under Order XXXII Rule 15 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). The

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petitioner has got a specific plea that the first respondent is a person of unsound mind and that she is not capable of protecting her interest in the case. But, the first respondent has denied having any mental illness or mental infirmity.

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Order XXXII Rule 15 of the Code states as follows:

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"15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind - Rules 1 to 14 (except rule 2A) shall, so far as may be apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."

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8. On a bare perusal of the said provision, it is evident

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that the court is empowered to appoint a guardian in the event a

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person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged, but he/she is found by court on inquiry to be incapable of protecting his or her interest, when suing or being sued, by reason of any mental infirmity, an appropriate order thereunder can be passed. This rule is applicable to two categories of persons. The first category is persons adjudged to be of unsound mind. The second category is

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persons found by the court on inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when sued or being sued.

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As early as in 1957, in Balakrishnan v. Kalliyani : 1957 KLT 268 , this Court had held that necessarily, the court has to satisfy itself on a proper inquiry, that the defendant, by reason of unsoundness of mind or mental infirmity, is incapable of protecting his interest in the suit, and then only the court could exercise its jurisdiction to appoint a proper person as guardian of the defendant. Acting on a mere allegation that the defendant is a person of unsound mind does not amount to an adjudication, express or implied, on the question of the alleged unsoundness of mind of the defendant. To treat a person, as one incapable of protecting his own interests by reason of unsoundness of mind or mental infirmity, is a very serious matter. It is in recognition of the seriousness of the matter that the legislature has insisted on a proper inquiry being made into that matter to enable the court to come to a conclusion about the mental condition of the person concerned. It is for the court to decide upon the manner in which and to the extent to which

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such inquiry has to be conducted to enable it to come to a satisfactory conclusion as to the mental condition of the party concerned. If notice of such inquiry is given to the party, he may himself appear in court and participate in the inquiry. If he appears or is brought before the court, his presence might enable the court to form an impression about his mental condition. If it is deemed necessary, he may be got examined by a medical expert and a certificate obtained as to whether he is mentally fit to protect his own interests.

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The decision under Order XXXII Rule 15 of the Code

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involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend or guardian, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the court has an obligation to protect his interests by appointing a next friend or guardian. If

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such person is capable of protecting his own interests, the court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions. Weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order XXXII Rule 15 of the Code (See Raveendran v. Sobhana : 2008 (1) KLT 488 ).

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If a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a person of unsound mind in view of Order XXXII Rule 15 of the Code (See Ram Chandra Arya v. Ram Singh : AIR 1968 SC 954 ).

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In the instant case, when the petitioner filed an application under Order XXXII Rule 15 of the Code alleging that the first respondent is a person of unsound mind, who is incapable of protecting her interest in the case, the Family Court was bound to conduct an enquiry into that matter and take a decision on the application. However, Ext.P7 order passed by the

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Family Court, does not reveal that it had conducted an enquiry as contemplated under Order XXXII Rule 15 of the Code. The court below has found that the first respondent is a person who can very well conduct her case. It is not known on what basis the court below has reached such a conclusion. There is nothing to indicate that the court below had interacted with the first respondent and formed an opinion that she was not suffering from any mental illness or mental infirmity. There is no material to indicate that the court below had conducted an enquiry to find out whether the first respondent is a person having any mental infirmity.

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Learned counsel for the respondents contended that the Family Court had recorded the statement of the first respondent to find out whether she is a person suffering from any mental illness or infirmity. But, Ext.P7 order does not give any indication that the court below had adopted any such procedure.

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In the aforesaid circumstances, we find that Ext.P7 order passed by the Family Court is not legally sustainable and that it is liable to be set aside.

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Regarding the application filed by the petitioner as I.A.No.1193/2018 for summoning documents from the hospital regarding the treatment of the first respondent, we find that such a step was taken by the petitioner not for the purpose of adducing evidence in the enquiry under Order XXXII Rule 15 of the Code. On the other hand, the petitioner has taken such a step for the purpose of adducing evidence in the original petition filed before the Family Court. The Family Court has dismissed the aforesaid application solely on the ground that it had dismissed I.A.No.546/2018. Since we intend to set aside the dismissal of the application I.A.No.546/2018, Ext.P8 order passed by the court below in I.A.No.1193/2018 is also liable to be set aside.

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Consequently, we quash Exts.P7 and P8 orders passed by the Family Court and remand the applications I.A.No.546/2018 and I.A.No.1193/2018 in O.P.No.360/2018 on the file of the Family Court, Kozhikode to that court for fresh consideration and disposal in accordance with law. During the enquiry in the application I.A.No.546/2018, if the Family Court finds that it would require medical evidence to take a decision on

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that application, it is at liberty to direct the first respondent to undergo medical examination. The Original Petition is disposed

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of accordingly.

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(sd/-)

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C.K.ABDUL REHIM, JUDGE

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

jsr/02/11/2018

O.P.(FC) No495/2018

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF O.P.360/2018 DATED 31.3.2018 FILED BEFORE THE FAMILY COURT, KOZHIKODE

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EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT 11.6.2018 OF THE RESPONDENTS IN O.P.360/2018

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EXHIBIT P3 TRUE COPY I.A.546/2018 DATED 31.3.2018 TO APPOINT THE 2ND RESPONDENT AS GUARDIAN FILED BY THE PETITIONER IN O.P.360/2018

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EXHIBIT P4 TRUE COPY OF I.A.1193/2018 DATED 30.6.2018 FILED BY PETITIONER IN O.P.360/2018

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EXHIBIT P5 TRUE COPY OF I.A.1193/2018 DATED 30.6.2018 FILED BY PETITIONER IN O.P.360/2018

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EXHIBIT P6 TRUE COPY OF OBJECTIONS DATED 11.6.2018 FILED BY THE RESPONDENTS TO EXHIBIT P3 PETITION IN O.P.360/2018

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EXHIBIT P7 TRUE COPY OF ORDER DATED 31.7.2018 OF THE FAMILY COURT KOZHIKODE IN EXHIBIT P3 PETITION IN O.P.360/2018

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EXHIBIT P8 TRUE COPY OF ORDER DATED 31.7.2018 OF THE FAMILY COURT KOZHIKODE IN EXHIBIT P4 PETITION IN O.P.360/2018

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EXHIBIT P9 TRUE COPY OF SUMMARY SHEET DATED 2.1.2018 OF THE TREATMENT DETAILS OF THE 1ST RESPONDENT ISSUED BY THE UNIT CHIEF OF KMCT MEDICAL COLLEGE HOSPITAL

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O.P.(FC) No495/2018

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EXHIBIT P10 TRUE COPY OF DISCHARGE SUMMARY OF THE 1ST RESPONDENT DATED 8.1.2018 ISSUED BY THE CONSULTANT KMCT MEDICAL COLLEGE HOSPITAL

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RESPONDENS' EXHIBITS:

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NIL

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TRUE COPY

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