Kerala High Court
Shylaja vs Vijayalakshmi on 19 January, 2012
Author: K.M.Joseph
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933
WPC.No. 3512 of 2011 (R)
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PETITIONER(S):
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SHYLAJA, D/O/SHANMUGHAN, VAYALTHITTA VEEDU,
KADAKKAVOOR DESOM AND VILLAGE,
THIRUVANANTHAPURAM DIST.
BY ADVS.SRI.M.R.RAJESH
SMT.GEETHA JOB(OZHUKAYIL)
SMT.A.K.PREETHA
SRI.K.M.ALEXANDER
RESPONDENT(S):
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VIJAYALAKSHMI, D/O.LEENA BAI,
AALUMMOODU VEEDU, KEEZHATTINGAL DESOM,
KEEZHATTINGAL P.O., ATTINGAL,
THIRUVANANTHAPURAM, REP. BY HER GUARDIAN,
MOTHER AND NEXT FRIEND LEENA BAI, RESIDING AT
AALUMMOODU VEEDU, KEEZHATTINGAL DESOM,
KEEZHATTINGAL P.O., ATTINGAL,
THIRUVANANTHAPURAM 695 001.
(THE RESPONDENT IS REPRESENTED BY HER NEXT FRIEND SINCE
SHE IS MENTALLY UNSOUND AND THAT FACT IS TAKEN NOTE OF
BY THE COURT BELOW IN EXT.P3 ORDER ALSO.)
BY ADV.SRI.S.JIJI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-
2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC.No. 3512 of 2011 (R)
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A P P E N D I X
Petitioner's Exhibits :
Ext.P1 to P1(h) : True copies of 8 prescriptions of Dr.Asraf Ali, Associate Professor of
Psychiatry, Medical College Hospital and Mental Health Centre, Thiruvananthapuram
issued, treating the first respondent.
Ext.P2 : True copy of the order dt. 16.11.2009 in O.P.(G&W) 1328/09.
Ext.P3 : True copy of the I.A.1283/2010 dt. 30.4.2010 in O.P.(G&W) 359/10.
Ext.P4 : True copy of the Memo dt. 3.5.2010.
Ext.P5 : True copy of the Medical Certificate dt. 19.6.2010.
Ext.P6 : True copy of the I.A.2216/2010 in O.P.(G&W) 359/10.
Ext.P7 : True copy of the order dt. 8.10.2010 in Ext.P6.
Ext.P8 : True copy of the interim order dt. 14.12.2010 om O.P.(FC) 1133/2010.
Ext.P9 : True copy of the interim order dt. 23.12.2010 in O.P.(FC) 1133/2010.
Ext.P10 : A true copy of the judgment dt. 5.1.2011 in O.P.(FC) 1133/2010.
Ext.P11 : True copy of the deposition of the respondent (DW1)
Ext.P12 : True copy of the deposition of Dr.Anju Mathew (PW6)
Ext.P13 : True copy of the deposition of Dr.Vithu Kumar (PW3)
Ext.P14 : True copy of the deposition of Dr.Ashraf Ali (PW2)
Ext.P15 : True copy of I.A.No.65/11 in O.P.(G&W) 1328/09.
Ext.P16 : True copy of the objection to Ext.P15.
Ext.P17 : True copy of the order dt. 17.1.2011 dismissing Ext.P15.
Ext.P18 : True copy of the objection filed by the respondent in O.P.(G&W) 1328/09
dt. 20.3.2010.
tgs (True copy) P.S. to Judge.
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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W.P.(Civil) No.3512 of 2011
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Dated 19th January, 2012.
J U D G M E N T
K.M.Joseph, J.
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India. The prayer in the Writ Petition is to issue a writ in the nature of certiorari to call for the records relating to Ext.P17 order dated 17.1.2011 in I.A.No.65/2011 in O.P.(G&W) 1328/2009 on the file of the Family Court, Nedumangadu and quash the same.
2. Briefly put, the case of the petitioner is as follows:
Petitioner is the second respondent in O.P.(G&W) 359/10 on the file of the Family Court, Nedumangad, filed by the respondent, who is the wife of the petitioner's brother seeking to declare her as the guardian of the minor child Darsan. The petitioner along with her brother had filed O.P.(G&W) 1328/09 before the Family Court, Nedumangad. According to the petitioner, the respondent is mentally ill and she is not able to look after the infant. Ext.P1 series are true copies of prescriptions produced to show that the respondent was under W.P.C.3512/11 2
treatment. In the Original Petition filed by the petitioner along with the husband of the respondent, Ext.P2 order dated 16.11.2009 was passed, permitting the wife to visit the house of the husband and see the child. It is after Ext.P2 order was passed that O.P.(G&W) No.359/10 was filed. There were some proceedings directing production of the child, with which we need not go in detail. Apparently, the petitioner had approached this Court aggrieved by the order of the Family Court to produce the child and there is a complaint that contrary to the direction of this Court to dispose of the petition to recall the order, no order was passed.
3. In O.P.(G&W)359/10, respondent filed Ext.P3 application praying that she may be examined by a Medical Board. That was filed on 30.4.2010. The petitioner points out that the said petition came to be allowed on the same day, i.e., 30.4.2010. The complaint made is that the petitioner was not served with a copy before the order was passed. The copy was served on her only on 30.5.2010. Without even giving an opportunity to oppose the petition, the petition was allowed. W.P.C.3512/11 3 Consequently, on the basis of the order, report as Ext.P5 was made on 19.6.2010. We will advert to the same at a later stage. Petitioner filed Ext.P6 to set aside the said report. The said application was rejected vide Ext.P7. The petitioner preferred O.P.(FC) 1133/10 before this court. Therein, an interim order(Ext.P8) was passed dealing with the contentions of the petitioner with regard to Ext.P5. What is of relevance is paragraph 6, which we extract :
"6. Coming to the grievance about Ext.P5, we are satisfied that interests of justice shall be safely secured if it is specifically directed that if the court wants to place reliance on Ext.P5, the petitioner must be given opportunity to challenge Ext.P5 by giving her opportunity to cross-examine the authors of Ext.P5 Medical Certificate. When they are examined, she must certainly be given opportunity to confront the experts with prior documents, if any. If the court is so inclined, the court can certainly direct a fresh evaluation by the Medical Board also. At any rate, we are satisfied that the progress of the trial need not be interrupted."
Thereafter, Ext.P9 is the further order passed in the said Original Petition and finally, the Original Petition came to be closed vide Ext.P10. Ext.P11 purports to be the deposition of W.P.C.3512/11 4 the respondent/wife in O.P.359/10 and O.P1328/09, which were being jointly tried. Exts.P12 and P13 purports to be the deposition of the doctors who prepared Ext.P5 report. Ext.P14 purports to be the evidence of another Psychiatrist, who issued Ext.P1 series prescriptions. Thereafter, the petitioner filed Ext.P15. The prayer in Ext.P15 was apparently based on the dissatisfaction of the petitioner with Ext.P5 report and in keeping with the observations made in paragraph 6 in Ext.P8 order. In other words, the petitioner sought a fresh evaluation by another Board. The respondent filed Ext.P16 objection. It is on Ext.P15 interlocutory application that Ext.P17 impugned order came to be passed.
4. We heard learned counsel for the petitioner and the learned counsel for the respondent.
5. The complaint of the learned counsel for the petitioner falls into two parts. Firstly, he would point out that none of the issues which were raised by the petitioner in Ext.P15 have been considered by the Family Court in Ext.P17. The second complaint is that an enquiry was conducted without W.P.C.3512/11 5 even alerting the petitioner, purporting to be under Order 32 Rule 15 of the Civil Procedure Code. Such a procedure is illegal, contends the learned counsel for the petitioner. Per contra, learned counsel for the respondent supported the order.
6. It is not in dispute that as far as O.P.1328/09 is concerned, the respondent was sought to be represented by a next friend. When a person is sought to be represented by a next friend under Order 32 Rule 15, provisions relating to Rules 1 to 14 of Order 32 will apply, except Rule 2A. Apparently, such an enquiry was not conducted earlier. It was in such circumstances, apparently, the court felt the need to enter a finding on the same.
7. Before the court, there was evidence of the respondent herself. As the court notes, the respondent had been subjected to lengthy cross examination. The court apparently had the opportunity of watching the witness in the witness box, which is an advantage, which we are deprived of. Besides the same, there is also the evidence of two doctors, who prepared Ext.P5 report. Still further, there is the evidence W.P.C.3512/11 6 of the doctor who issued Ext.P1 prescriptions, whose deposition was produced as Ext.P14.
8. It is no doubt true that in the course of Ext.P17 order, the court has found that the respondent was not of unsound mind on the date of institution of O.P.1328/09 and that it is illegal on the part of her husband to have cited her as a person of unsound mind, requiring to be represented by her mother. We notice that however, the court has, in the very same order, found as follows :
"It is cited vide Ext.X1 certificate that she initially had a spell of Bipolar Mood Disorder in the month of September, 2007, and it subsided with medicines administered; patient passing on to a state of remission (being normal) within 8 months, and that, the patient thereafter stopped taking medicines resulting in recurrence of sings of mood disorder such as irritability and over-activity in October 2009, which lasted for 6 months ie, till the month of March 2010, or at the most April, 2010, she again passing on to a state of remission being administered with medicines; yet, it is seen that, the petitioner-husband has filed O.P.1329/2009 against respondent-wife citing her as a person of unsound mind in the month of November 2009, W.P.C.3512/11 7 and deprived her of the physical custody of the breast- feeding child or baby without affording her a chance of having the benefit of an enquiry as to whether she was of sound mind, or not."
Besides, the petitioner also laid considerable store by the contents of Ext.P2 order, wherein, no doubt, it appears to be the case of the respondent that the respondent becomes violent when she comes to the husband's house. That order is dated 16.11.2009.
9. The Mental Health Act of 1987 has replaced the Lunacy Act. No doubt, as of now, under the Act, mentally ill person is defined differently from how it was defined in the Lunacy Act. We must, however, notice the provisions of Order 32 Rule 15 of the Civil Procedure Code. Order 32 Rule 15 reads as follows :
"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 W.P.C.3512/11 8 found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."
Under Order 32 Rule 15 of the Civil Procedure Code, first category of persons are those adjudged to be of unsound mind, whether before or during the pendency of the suit. Such a situation is not present in this case, as there is no adjudication either before or during the pendency of the suit by any court that the respondent is of unsound mind. The further category, no doubt, comprehended under Order 32 Rule 15 C.P.C. are persons, who, on enquiry are found to be incapable, by reason of any mental infirmity of protecting their interest when suing or being sued. In Ext.P5, no doubt, it is stated inter alia as follows :
"Report of Psychiatric Medical Examination of the party in O.P.No.359/10 of Family Court, Nedumangad.
A Medical Board constituted with Dr.Vidhukumar K., Assistant Professor of Psychiatry and Dr.Anju Mathew, Senior Lecturer in Psychiatry, Medical College, Thiruvananthapuram as members, examined the party Mrs.Vijayalakshmi, D/o.Leena Bai, Alumoodu Veedu, Attingal W.P.C.3512/11 9 P.O. The details are given below :-
Identification Marks (1) B lack mole over right wrist-ventral aspect (2) Black mole over right side of face near right ear.
Mrs.Vijayalakshmi, 21 years has been on treatment for an episodic mental illness for last 3 years. She and her father give history suggestive of mixed affective episode (over activity, clinging behaviour, fear, crying spells, at times cheerful, decreased sleep) in 2007 September which remitted in 8 months. She had been off drugs for 1= years. Had recurrence of symptoms suggestive of manic episode (over activity, irritability) in 2009 October which remitted in six months. Now she is on prophylactic mood stabilizer (Oxcarbazepine 600 mg). Family history of episodic mental illness in paternal aunt. Mental Status Examination revealed a conscious, oriented person with relevant talk and euthymic mood. No depressive ideas. No delusions of perceptual abnormalities. No formal though disorder. Abstractability, judgment and insight intact at present. Her psychological examination was consistent with above findings.
Mrs.Vijayalakshmi seems to be suffering from Bipolar Disorder which is under remission now and she seems to be capable of being guardian to her child. She has to continue treatment with regular follow up to prevent recurrence of further episodes. However, if episodes recur, she might W.P.C.3512/11 10 need supervision from her family members." It is, no doubt, true that going by the certificate also the respondent did have a mental problem. But, apparently, the report appears to indicate that she is under remission from Bipolar disorder from which she is seemingly suffering from and she is capable of being a guardian.
10. As far as the question relating to proceedings under Order 32 Rule 15 C.P.C. is concerned, the question is whether by reason of any of the vitiating circumstances, the person is unable to protect his or her interest, either as a plaintiff or as a defendant. We have already noticed that the respondent was subjected to a fairly lengthy cross-examination. She was also, apparently, filing affidavits by herself. Therefore, even without the finding that the respondent was not of unsound mind as on the date of the petition, we are of the view that in this case, it can be found that the respondent was capable of continuing the litigation and therefore, there is no need for representation through a next friend. The finding that she was not of unsound mind apparently flowed also from the W.P.C.3512/11 11 opportunity which the court had to watch her and gauge her, when she was examined as a witness. No doubt, there may be some substance in the complaint of the petitioner that the court itself having found that during the time the respondent had again relapsed, consequent upon her not taking medicines, it may not have been justified in finding that as on the date of petition, she was not of unsound mind. We would think that in the circumstances of this case, we need not interfere with the finding under Order 32 Rule 15.
11. As far as the further question is concerned, mainly, whether the court below acted illegally or in excess of jurisdiction in not considering the various objections raised in Ext.P15, it may be true that the specific issues raised in Ext.P15 were not expressly considered. But, here we must remind ourselves again that this is a petition purportedly filed under Articles 226 and 227 of the Constitution of India. It is settled that a petition, if it is filed under Article 226 or Article 227, is purely supervisory in nature and the court does not sit as an appellate court and re-appreciate the materials. The court, W.P.C.3512/11 12 which has jurisdiction to pass order may pass an order, which is correct or incorrect. A writ court, be it under Article 226 or Article 227, will not correct mere errors of fact or of law even. We do not think that this case involves a jurisdictional infirmity or illegality as such, in the matter of the court declining to accede to the petitioner's request contained in Ext.P15 to send the respondent for evaluation by a Medical Board.
12. No doubt, we must hasten to add that considerations, which are germane for deciding a matter under Order 32 Rule 15 C.P.C. and which are pertinent in the matter of grant of custody of the minor child may not be the same. When the court takes up the matter and proceeds to consider the question relating to custody, necessarily, it must consider the entire evidence before it as adduced by the parties as we are told that the entire evidence has been adduced in this case already and what is required is a decision on the issue. We also make it clear that the court will take a final decision in the matter, untrammelled by the observations in the impugned order. We also observe that even though we are not W.P.C.3512/11 13 interferring with Ext.P17, refusing to send the respondent for medical evaluation, if the petitioner urges that a separate evaluation may be necessary for the purpose of deciding the question relating to custody, it will be open to the court, after evaluation of the entire evidence before it, to take an appropriate decision in the matter. We further direct that the case will be disposed of by the Family Court on or before 31.3.2012.
The Writ Petition is disposed of as above.
Sd/-
K.M.JOSEPH, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs (true copy)