High Court Kerala High Court

Raveendran vs Sobhana on 3 December, 2007

Kerala High Court
Raveendran vs Sobhana on 3 December, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat Appeal No. 229 of 2006()


1. RAVEENDRAN, AGED 49 YEARS,
                      ...  Petitioner

                        Vs



1. SOBHANA, AGED 42 YEARS,
                       ...       Respondent

2. MINOR RAMYA, AGED 19 YEARS,

                For Petitioner  :SRI.M.SHAJU PURUSHOTHAMAN

                For Respondent  :SRI.FEBIN J.VELUKARAN

The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :03/12/2007

 O R D E R
                                                                  C.R.

         KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
              ----------------------------------------------
                  Mat.Appeal No.229 of 2006
              ----------------------------------------------
                  Dated 3rd December, 2007

                          J U D G M E N T

Kurian Joseph, J.

What is the jurisdictional obligation of the court in

dealing with a suit or other proceedings by or against persons of

unsound mind or persons suffering from any mental infirmity by

reason of which they are incapable of protecting their interests, is

the question arising for consideration in this case.

2. The appeal is directed against the order dated

16.5.2006 in O.P.No.847/2000 on the file of the Family Court,

Thrissur. Appellant is the petitioner. Appellant and the first

respondent got married on 20.10.1984 and there is a child in

their wed-lock. Appellant submits that he is deaf and dumb, and

hence the appeal is filed through his mother. The suit is for

setting aside the order in M.C.231/99. The Family Court framed

an issue as to whether the suit for declaration that the order in

M.C.231/99 is null and void, is maintainable.

3. M.C.231/99 is filed by the respondents-wife and

Mat.Appeal No.229/06 2

child herein for maintenance. In the said case, the appellant

herein is not represented by anybody else. The Family Court on

14.12.1999 passed the following order in the said case :

“Counselling done. Parties agreed for maintenance at Rs.800/-
per month to both petitioners from today. They signed an
agreement to that effect before the counsellor. Hence as agreed
between the parties the respondent is ordered to pay
maintenance at the rate of Rs.400/- per month each to both
petitioners from today. 1st petitioner is allowed to receive the
amount on behalf of the 2nd petitioner. No costs.”

Being a deaf and dumb person and since he suffers from mental

infirmity, it is submitted that he could not have given a valid

consent without a next friend. The order passed in a proceedings

where such a person was not given the assistance of a next

friend is null and void. Without a proper enquiry under Order 32

Rule 15 of the Civil Procedure Code, the court could not have

passed an order for maintenance, it is submitted.

4. The appellant had also filed an application in the

suit for an enquiry under Order 32 Rule 15 of Civil Procedure

Code. It is seen that the Family Court has not conducted any

enquiry in that regard. The court has observed that in view of the

order in M.C.231/99, unless the said order is set aside or

cancelled by a competent court, the court is helpless.

Mat.Appeal No.229/06 3

5. Inviting reference to the decision of this court in

Kunhamma v. Rosakkutty (1997(1) KLT 33) it is submitted that

being a suit/petition filed by a deaf and dumb person, the court

should have conducted a preliminary enquiry before proceeding

with the trial. It is submitted that a decree against a deaf and

dumb person, who is also suffering from mental infirmity is a

nullity, in case it is one prosecuted without appointing a next

friend. If a decree is null and void, the prayer for a declaration in

that regard is sufficient and it is not necessary even to set aside

the same. Reference is invited to the Full Bench decision of this

court in Pankajaksha Kurup v. Fathima (1998(1) KLT 668).

We also note that in the decision reported in Lakshmi Pillai

Parvathi Pillai v. Purushothama Pai (1965 KLT 57), the

Division Bench of this court has taken the view that a fresh suit to

set aside such a decree passed against a person suffering from

the incapacity referred to above is maintainable. Neither in

M.C.231/99 nor in O.P.847/2000, the Family Court has conducted

an enquiry as to the mental capacity of the appellant herein or

as to whether he is capable of protecting his interest when suing

or being sued.

Mat.Appeal No.229/06 4

6. 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 found by the
Court on enquiry to be incapable, by reason of any mental
infirmity, of protecting their interest when suing or being sued.”

The court, before whom a deaf and dumb person or a person

suffering from mental infirmity, or a person who is seemingly

unable to protect his interest when suing or being sued appears,

is bound to conduct a preliminary enquiry before proceeding with

the suit as to whether the person is capable of protecting his

interests without the assistance of a next friend. Kunhamma v.

Rosakkutty (supra) is a case where the alleged deaf and dumb

person filed a petition before the court for removal of his next

friend. In that case, the next friend had already instituted

proceedings before the civil court on behalf of the deaf and dumb

person. The court, after conducting an enquiry, and on being

satisfied that the deaf and dumb person was capable of

protecting his interests, removed the next friend. This court,

from the records found that it was not clear as to whether the

civil court, before removing the next friend had conducted a

Mat.Appeal No.229/06 5

proper enquiry, and hence remitted the matter to the civil court

with a direction to conduct a proper enquiry. It was observed by

this court that “without proper experience or expertise in

understanding the gestures and signs given by a deaf and dumb

person or without the assistance of an expert in that field, it will

be very difficult though not absolutely impossible, to discern and

understand the signs and gestures made by a deaf and dumb

person, being answers to the questions put to him by the court.

Therefore, it is absolutely unsafe for the court to rely upon the

gestures and signs given by a deaf and dumb person with regard

to the correct and accurate understanding of the answers given

by him.” Still further, it was observed at paragreph 8 of the said

judgment that “Even though the court is not bound to make an

elaborate and detailed enquiry with regard to the sanity or

otherwise of a person who is alleged to be incapable of looking

after his own affairs and under order 32 Rule 15 C.P.C. the scope

and ambit of the enquiry is the satisfaction of the court as to

whether that person is in fact incapable of looking after his

affairs, the enquiry should be judicial enquiry to enable the court

to come to satisfactory conclusion as to the mental condition of

Mat.Appeal No.229/06 6

the party concerned.”

7. A similar question came up for consideration in the

decision reported in Rami Reddi v. Papi Reddy (AIR 1963

Andra Pradesh 160), wherein it was held that Order 32 Rule 15

applies not only to a person adjudged to be of unsound mind, but

also to a person of weak mind.

8. Whether a deaf and dumb person can be said to be

a person suffering from mental infirmity and as one entitled to

protection of Order 32 Rule 15, is the question to be considered.

Mental infirmity is not mental disorder. It is not mental illness or

unsoundness of mind or insanity. It only indicates the weakness

of intellect, and in the particular context of Order 32 Rule 15,

weakness of intellect to the extent of making a person incapable

of protecting his interests in the litigation. Thus a person who is

not of unsound mind may, yet be a person who is mentally infirm,

thus entitling him to the protection under Order 32 Rule 15. In

this context, it will be profitable to refer to one of the earliest

decisions of the Lahore High Court in Nanak Chand v. Banarsi

Das(AIR 1930 Lahore 425), wherein it has been held that a deaf

mute, who has been leading a family life with his wife and

Mat.Appeal No.229/06 7

children and eking his livelihood by grazing cattle, but who could

not be understood by ordinary persons who are unacquainted

with him, and not capable of understanding such persons is

governed by Order 32 Rule 15.

9. Idiocy or unsoundness of mind indicates an

abnormal state of mind, whereas mental infirmity only indicates

weakness of mental strength. It was in that context, it was held

by the Andhra Pradesh High Court in Ganga Bhavanamma v.

Somaraju (AIR 1957 Andhra Pradesh 938) that the provisions of

Lunacy Act applies only to idiots or persons of unsound mind,

whereas Order 32 Rule 15 applies to dull-witted persons or

persons with lesser degree of intellectual competence.

Therefore, inquisition as per the procedure under the Lunacy Act

is not required while dealing with persons suffering from mental

infirmity. A person who is not adjudged as one of unsound mind

under the Lunacy Act is still entitled to the protection under Order

32 Rule 15, if the court is satisfied that the person before the

court is incapable of protecting his interests, either by reason of

unsoundness of mind or intellectual incompetence due to mental

infirmity. In short, as held by the Andhra Pradesh High Court in

Mat.Appeal No.229/06 8

Rami Reddy’s case (supra), mental infirmity may even be due

to physical defects, if such defects render a person incapable of

receiving any communication or communicating his wishes or

thoughts to others. The scope of enquiry under Order 32 Rule

15 is the assessment of the capability of a person either of

unsound mind or suffering from any mental infirmity like deafness

or dumbness, as to whether such defects or infirmities or

weaknesses would render a person incapable of communicating

his views, wishes or thoughts.

10. The decision under Order 32 Rule 15 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, 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 and if such person is capable of protecting his own

Mat.Appeal No.229/06 9

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. In the decision

reported in S.C.Karayalar v. V.Karayalar (1968 MLJ 150), it

was held that holding of an enquiry under Order 32 Rule 15 ….”is

thus inescapable and consent cannot vest jurisdiction in Court to

dislodge or divest the right of a litigant to conduct his suit, by

superimposing a guardian or a next friend.”

11. Thus the legal position is that mental infirmity in

the context of Order 32 Rule 15 is not mental disorder, insanity or

mental illness. Weakness of mind due to any reason, making a

person incapable of protecting his interests, is sufficient to unfold

the protective umbrella under Order 32 Rule 15. Such infirmity

can also be caused by physical defects like deafness or

dumbness, whereby a person is made incapable of

communicating his wishes, views or thoughts to others who are

not acquainted with him. If such a person is before the court in a

suit or proceedings either as plaintiff or defendant, the court has

a jurisdictional obligation to conduct an enquiry as to whether the

person is capable of protecting his own interests. If in the judicial

Mat.Appeal No.229/06 10

enquiry, if necessary and if required, conducted with the

assistance of an expert, it is found that such person is incapable

of protecting his interests in the suit or proceedings before the

court, the court has an obligation to appoint a next friend for such

person, and if the court on the other hand finds that the person is

otherwise capable of protecting his interests without a next

friend, the court shall remove the next friend if already available

and permit the person, who is alleged to be of unsound mind or

suffering from mental infirmity, to conduct the litigation himself.

As held by the Supreme Court in Ram Chandra v. Man Singh

(AIR 1968 SC 954), a decree passed against a minor without

appointment of guardian is a nullity. The same principle would

apply as far as a person suffering from unsoundness of mind or

mental infirmity as referred to in Order 32 Rule 15 is concerned.

12. The Family Court, in the instant case has in fact

framed an issue regarding the maintainability of the suit for

declaration of the order in M.C.231/99 as null and void. Since the

petitioner is admittedly a deaf and dumb person, the court could

not have proceeded with the case without conducting an enquiry

under Order 32 Rule 15. Depending on the outcome of the

Mat.Appeal No.229/06 11

enquiry the matter will have to be further considered in the light

of the Full Bench decision of this court in Pankajaksha Kurup’s

case(supra) or in the light of the bench decision in Lakshmi

Pillai Parvathi Pillai’s case (supra). We set aside the order

dated 16.5.2006 in O.P.847/2000 and remit the matter to the

Family Court, Thrissur. The Family Court shall consider

O.P.847/2000 in accordance with law and dispose of the same

expeditiously.

KURIAN JOSEPH, JUDGE.

HARUN-UL-RASHID, JUDGE.

tgs