Karnataka High Court
Smt Hemavathi Rai vs Mrs Kanchana Rai on 11 November, 2021
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.19952 OF 2021 (GM-FC)
BETWEEN:
SMT. HEMAVATHI RAI,
W/O LATE MONAPPA RAI,
AGED ABOUT 65 YEARS,
V.N. COMPOUND, BAJPE, MANGALURU TALUK,
DAKSHINAKANNADA - 575 001.
...PETITIONER
(BY SRI. NITIN A.M., ADVOCATE)
AND:
MRS. KANCHANA RAI,
AGED ABOUT 38 YEARS,
D/O M VIJAYA KUMAR SHETTY,
R/AT PANDESHWAR, MANGALORE,
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DTD.9.2.2021 PASSED BY THE PRL JUDGE FAMILY
COURT MANGALORE D.K. IN ,.C.NO.9/2018 AS THE SAME
SUFFERS FROM ERROR APPARENT ON THE FACE OF RECORDS
i.e ANNEXURE-A); AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner being the mother of one Mr. Prashanth Rai who happens to be the sole respondent in M.C.No.09/2018; this M.C. is filed by Ms.Kanchana Rai seeking a decree for divorce u/s.13(1)(i)(a) of the Hindu Marriage Act, 1955; in this 2 writ petition a challenge is laid to the order dated 20.02.2021 at Annexure-A whereby petitioner's application in I.A.No.5 has been rejected by the learned Principal Family Court Judge at Mangalore.
2. The subject application of the petitioner was filed under Order XXXII Rule 15 of the Code of Civil Procedure, 1908 for appointing the petitioner as the guardian ad liten on the ground that her son Prashanth Rai is suffering from Bipolar Mania and consequently he is not in a position to prosecute his defence in the said M.C; however the learned trial Judge has turned down the request vide impugned order on the ground that no case of the kind is made out.
3. Having heard the learned counsel for the petitioner and having perused the petition papers, this court declines to grant indulgence in the matter for the following reasons:
(a) The M.C. No.9/2018 filed on 03.01.2018 by the respondent herein against the son of petitioner; thus nearly four years are over; the petition is founded on the grounds of cruelty and seeks dissolution of marriage; no noticeable progress is made in the matter; the subject application was 3 filed and it was resisted by the respondent by filing the objections.
(b) In support of the application petitioner has been examined as AW-1; one Dr.Carolina D'Souza has been examined as an expert medical witness AW-2; at para 2 she has deposed as under:
2. ¸ÀĪÀiÁgÀÄ 3-4 ªÀµÀðUÀ¼À »AzÉ ¥ÀæxÀªÀĪÁV ¥Àæ±ÁAvï gÉÊgÀªÀgÀÄ £À£Àß°èUÉ aQvÉìUÁV §A¢zÀÝgÀÄ. CªÀgÀÄ M§âgÉà §A¢zÀÝgÉÆà CxÀªÁ eÉÆvÉAiÀÄ°è AiÀiÁgÀÄ §A¢zÀÝgÀÄ £É£À¦®è ºÀ®ªÀÅ ¸À® §A¢zÀÝgÀÄ PÉ®ªÀÅ ¸À® CªÀgÀ vÁ¬Ä eÉÆvÉAiÀÄ°è ªÀÄvÀÄÛ PÉ®ªÀÅ ¸À® M§âgÉà §A¢gÀÄvÁÛgÉ. EªÀgÀÄ ¸ÀĪÀiÁgÀÄ 15-20 PÀÆÌ ºÉZÀÄÑ ¸À® §A¢gÀÄvÁÛgÉ.
¥Àæ±ÁAvï gÉÊ gÀªÀjUÉ ¸ÀA§A¢ü¹ £ÁªÀÅ AiÀiÁªÀÅzÉà PÉÃ¸ï ²Ãmï ElÄÖPÉÆAr®è. ¸ÁªÀiÁ£ÀåªÁV ªÀÄ£ÉÆÃgÉÆÃVUÀ¼ÀÄ §AzÁUÀ PÉÃ¸ï ²Ãmï §jAiÀÄÄvÉÛêÉ. ¥Àæ±ÁAvï gÉÊgÀªÀjUÉ ¸ÀA§A¢ü¹ CªÀgÀ PÀÄlÄA§zÀ »£Éß¯É AiÀiÁjUÁzÀgÉÆà ªÀÄ£ÉÆÃSÁ¬Ä¯É EvÀÄÛ JA§ÄzÁV «ZÀj¹ w½zÀÄPÉÆArgÀÄvÉÛêÉ. ¥Àæ±ÁAvï gÉÊUÉ ªÀiÁ£À¹PÀ SÁ¬Ä¯É ºÉÃUÉ §AvÀÄ ªÀÄvÀÄÛ JµÀÄÖ ªÀµÀðUÀ½AzÀ EzÉ JAzÀÄ ºÉüÀ®Ä §gÀĪÀÅ¢®è. ¥Àæ±ÁAvï gÉÊUÉ ¸ÀA§A¢ü¹ T£ÀßvÉ, ¨sÁªÉÇzsÉéÃUÀvÉ ªÀÄÄAvÁzÀªÀÅUÀ¼ÀÄ EzÀݪÀÅ. ¤¦ - 1 gÀ PÀæªÀÄ ¸ÀASÉå-2 gÀ°è ºÉýgÀĪÀ Acemprol JA§ UÀĽUÉAiÀÄ£ÀÄß ªÀÄzsÀåªÀå¸À£À EgÀĪÀªÀjUÉ ¤ÃqÀ¯ÁUÀÄvÀÛzÉ. ¥Àæ±ÁAvï gÉÊ Episode £À°èzÀÄÝ £ÀªÀÄä°èUÉ §gÀĪÁUÀ CªÀjUÉ Bipolar affective disorder JA§ SÁ¬Ä¯É EgÀĪÀÅzÀÄ UÉÆvÁÛ¬ÄvÀÄ. CªÀgÀÄ ªÀÄzsÀå¸ÉêÀ£É ªÀiÁrzÁUÀ Bipolar Disorder EgÀÄvÀÛzÉ. zsÀƪÀi¥Á£À ºÉÆÃUÀ¯Ár¸À®Ä CªÀjUÉ £Á£ÀÄ AiÀiÁªÀÅzÉà UÀĽUÉ ¤Ãr®è. Bipolar Affective Disorder J£ÀÄߪÀÅzÀÄ International Classification of Disease £À°è ªÀVÃðPÀgÀt (1) gÀ°è §gÀÄvÀÛzÉ. Bipolar Affective Disorder JAzÀgÉ CzÀÄ Mental Defective C®è Mood Disorder DVgÀÄvÀÛzÉ. CzÀÄ ªÉÄAl¯ï qÁåªÉÄÃdìUÉ ¸ÀA§A¢ü¹gÀĪÀAvÀºÀ SÁ¬Ä¯É C®è. F SÁ¬Ä¯É Triggered by Stress ¤AzÀ DUÀ§ºÀÄzÀÄ. Whenever there is a episode his judgment capacity can be impaired. In remission it will not be impaired the thinking capacity of mind. With respect to the 4 Prashant Rai is concerned in remission he can do business or work not during episode."
(c) The standard medical books state that Bipolar Mania by its very nature brings mood oscillation between hypo mania & depression and that these are periodic episodes intervened by lucidity spells vide 'Psychology: A Complete Introduction' by Dr. Sandi Mann, 2016 Edn.; the learned trial Judge having considered deposition of the medical witness has formed an opinion that the son of petitioner despite Bipolar Mania-Type 1 can prosecute his defence; this is consistent with the text book version as well; he has also considered the deposition of petitioner.
(d) The English Courts have taken a view that the mere existence of dilution of the mind is not enough to effect contractual capacity vide JENKINS vs. MORRIS, 14 Ch D 675; matter pertaining to appointment of guardian ad litum cannot be treated casually; in matrimonial cases it is desirable that the parties themselves depose before the court than others doing it; if the matter related to property dispute or such other dispute, perhaps the approach would have been different.
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(e) It is obvious that order of the kind is by its very nature a product of exercise of discretion; such discretionary orders ordinarily do not merit a deeper examination vide SADHANA LODH vs. NATIONAL INSURANCE COMPANY LTD., (2003) 3 SCC 524.
In the above circumstances, this case being devoid of merits, fails; however, it is open to the learned trial Judge to ensure that the son of petitioner is in the normal mental condition when he enters the witness box for deposing; since the M.C. is pending long, request is made to the Court below for its expeditious disposal.
The Registry shall send a copy of this order to the Principal Judge, Family Court at Mangalore, forthwith.
Sd/-
JUDGE DS