Kerala High Court
Roy Thomas vs Lekha Roy on 27 February, 2019
Equivalent citations: AIRONLINE 2019 KER 1033
Author: T.V.Anilkumar
Bench: C.K.Abdul Rehim, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940
OP (FC).No. 536 of 2018
I.A.NOS.1058/2017 AND 638/2018 IN O.P.NO.210/2017 of FAMILY COURT,
PATHANAMTHITTA
PETITIONER:
ROY THOMAS,
AGED 45,S/O.THOMASKUTTY, R.R.KOTTAGE,
PATTAZHI VILLAGE, PANTHAPLAVU P.O.,
PATHANAPURAM TALUK,
KOLLAM DISTRICT.
BY ADVS.
SRI.N.L.BITTO
JOE.J.URUVATH
RESPONDENT:
LEKHA ROY,
AGED 36,
W/O.ROY THOMAS,
RESIDING AT CHERUVATTOLIL PADINJARETHIL (MANORAMA)
HOUSE,
KOZHANCHERY P.O., MALLAPPUZHASSERY VILLAGE,
KOZHANCHERY PANCHAYAT,
KOZHANCHERY TALUK, PATHANAMTHITTA DISTRICT
PIN - 689 645
BY ADVS.
SRI.V.SETHUNATH
SRI.V.R.MANORANJAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22.2.2019,
THE COURT ON 27.02.2019, DELIVERED THE FOLLOWING:
OP (FC).No. 536 of 2018 : 2 :
C.R.
C.K.ABDUL REHIM
&
T.V.ANILKUMAR, JJ.
---------------------------------
O.P.(FC) No. 536 of 2018
----------------------------------
Dated this the 27th day of February, 2019
JUDGMENT
T.V.ANILKUMAR,J.
The petitioner challenges two orders passed by the Family Court, Pathanamthitta on 26.7.2018, dismissing I.A.Nos.1058 of 2017 and 638 of 2018 in O.P.No.210/2017 filed by him for a decree of dissolution of his marriage with his wife, the respondent herein.
2. He sought divorce on the ground of cruelty as well as mental disorderliness of the respondent by invoking Section 10 (1) (iii) and Section 10(1) (x) of the Divorce Act, 1869. He, however, failed to seek appointment of a guardian on behalf of the respondent, at the commencement of the proceeding. When this omission came to his notice, he filed OP (FC).No. 536 of 2018 : 3 : I.A.No.638/2018 for amending the original petition and appointing the mother of the respondent as her next friend in the proceeding. This was heavily opposed by her on the ground that she was not mentally ill and had never suffered from any sort of incurable mental disorderliness.
3. The petitioner also sought to subject the respondent to medical examination for assessing her mental status. I.A.No.1058/2017 filed by him in this respect was also stiffly opposed on the ground that there were no proper allegations in the pleadings, imputing mental illness on her. The court below through the impugned orders held that, the petitioner is not entitled to call for a medical report, since the court itself, during the course of interaction with the respondent, was satisfied that her faculty of understanding, feeling, laughing etc. were not impaired and that the appointment of a next friend to defend her interests in the proceeding, was not called for.
4. We heard counsel representing both sides.
5. What the appellant seeks through I.A.No.638/2018 is to amend the original petition incorporating the name of her OP (FC).No. 536 of 2018 : 4 : mother as next friend of the respondent. This plea for amendment appears to be legally not sustainable for the main reason that law sanctions engagement of next friend only when proceedings are initiated in the name of the author of the proceeding and he or she happens to be a minor or mentally ill person. When such a person becomes a defender of a proceeding in a court of law, Order XXXII Rule 3 of the Code of Civil Procedure (hereinafter referred to as 'the C.P.C.') applies, providing for appointment of a guardian for him. In fact, Order XXXII does not oblige a suitor or petitioning party to apply for an order appointing a next friend for him/her whereas an order appointing guardian is necessary when he or she requires to be represented in the proceeding by a guardian. A next friend is different from a guardian. Next friend in a legal proceeding is a person who undertakes the legal cause and acts for the legal benefit of someone not legally competent to act for himself or herself. He does not stand confined to any particular relative of the suitor. While a guardian is competent under law to act as a next friend for a person, the converse may not always be true. This distinction OP (FC).No. 536 of 2018 : 5 : made by law was not taken notice by the court below.
6. It is evident from the order passed in I.A. No.1058/2017 that, the respondent was capable of understanding things before her, as if her mental faculties were unimpaired. But the Family Court failed to enter a definite finding as to whether she was capable of defending the case or protecting her interests in the proceeding, as required by Rule 15 of Order XXXII of the C.P.C. The law requires that there shall be a definite finding as to the capacity of the party for whom the guardian is proposed, to take care of his interests in the proceeding and to defend the case. The Family Court by failing to enter a definite finding as to the capacity of the respondent to defend the case by herself, committed a jurisdictional error and consequently on that solitary ground itself the order requires to be interfered with.
7. Interaction of the court with the person for whom appointment of guardian is sought, is by all means an effective method to test the capacity of the person who is alleged to be mentally infirm. The court below also interacted with the respondent and what has turned out from the interview was OP (FC).No. 536 of 2018 : 6 : also recorded in the impugned order. This by itself is not enough according to us, unless a finding as to the capacity of the respondent to defend the case is also entered into by the court. There is nothing in law which prevents the court from obtaining a report from a medical expert as to the mental status of the person for whom appointment of guardian is proposed and to take those inputs also in forming the ultimate opinion as to whether he or she required to be represented by a guardian in the proceeding.
8. In the case on hand, the court below has failed to assign the definite reason on which the request for referring the respondent to the Medical Board was declined. A medical report, if called for, as to the mental status of the respondent will not go to prejudice her, since the court is not supposed in an enquiry under Order XXXII Rule 15 to decide the disputed issue of mental illness, which may be a relevant issue in the main proceeding. Whether the respondent is a person incurably of unsound mind is an issue arising in the O.P. itself and liable to adjudication based on evidence tendered by parties during the trial of the proceeding. There are many a OP (FC).No. 536 of 2018 : 7 : situation where mentally infirm persons are capable of defending cases against them and also protecting the interests in the litigations. In such cases, appointment of guardian is quite unwarranted. Thus, the limited enquiry in Order XXXII Rule 15 is as to whether the party is capable enough to take care of his interest in the litigation and nothing more. Without comprehending these principles of law and also without entering a definite finding on the capacity of respondent to prosecute a case on her own accord, the court below dismissed both I.A.Nos.638 of 2018 and 1058 of 2017 through the impugned orders. We do not find our way to sustain the orders and accordingly, we hold that they are liable to be set aside.
9. While setting aside the orders, we are inclined to remit both I.As to the court below directing it to consider the matter afresh, after hearing both parties, in the light of the observations aforesaid. The petitioner will see that, the person proposed to be brought on record to represent the respondent in the O.P. is a guardian to be appointed under Order XXXII Rule 3 of C.P.C. and not a next friend. If the OP (FC).No. 536 of 2018 : 8 : court below is fully satisfied from the interaction with the respondent or from the medical report, if any called for, that she can protect her interests in the litigation on her own accord, no order appointing a guardian for her is called for, in such situation. If the satisfaction is otherwise, it goes without saying that service of a guardian is quite necessary to protect the interests of the respondent. In either case, we make it clear that, the court below is bound to enter into a finding as to whether or not the respondent is capable of taking care of her interest in the litigation. But any finding holding that the respondent to be a person of unsound mind or otherwise is quite uncalled for at the stage of enquiry under Order XXXII Rule 15 of C.P.C., in as much as it would tantamount to prejudging an issue arising in the original petition and prejudicing the parties.
In the result, the above original petition is hereby allowed. The impugned orders dated 26.7.2018 in I.A.Nos. 638 of 2018 and 1058 of 2017 in O.P.No.210/2017 of the Family Court, Pathanamthitta are hereby set aside and the court below is directed to dispose of the aforesaid I.As afresh, OP (FC).No. 536 of 2018 : 9 : after giving opportunities to both the parties in the light of the observations made above.
Sd/-
C.K.ABDUL REHIM JUDGE Sd/-
T.V.ANILKUMAR, JUDGE al/Bb OP (FC).No. 536 of 2018 : 10 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION IN O.P.210 OF 2017 PENDING BEFORE THE FAMILY COURT, KOTTARAKKARA, DATED 16.7.2015.
EXHIBIT P2 A TRUE COPY OF THE G.O.P.483 OF 17 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 21.5.2015.
EXHIBIT P3 A TRUE COPY OF THE I.A.NO.1058 OF 2017 IN O.P.210 OF 2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 20.6.2018. EXHIBIT P4 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.1058 OF 2017 IN O.P.210 OF 2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA.
EXHIBIT P5 A TRUE COPY OF THE I.A.638 OF 2018 IN O.P.210 OF 2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 10.5.2018. EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.638 OF 2018 IN O.P.210 OF 2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 07.07.2018.
EXHIBIT P7 A TRUE COPY OF THE I.A.1058 OF 2017 IN O.P.210 OF 2017 BEFORE THE FAMILY COURT,PATHANAMTHITTA DATED 26.7.2018. EXHIBIT P8 A TRUE COPY OF THE ORDER IN I.A.638 OF 2018 IN O.P.210 OF 2017 BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 26.7.2018.
RESPONDENT'S EXHIBITS:
NIL //True Copy// P.A. To Judge Bb