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.
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Mat.Appeal No.229 of 2006
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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
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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