Ajith Alexander Marian v. Josephine Neethu and Rosemary

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939 OP (FC).No. 370 of 2016 (R) ---------------------------- IN THE MATTER OF O.P.NO.2295/2013 PENDING BEFORE THE FAMILY COURT,ERNAKULAM. PETITIONER: ---------- AJITH ALEXANDER MARIAN AGED 38, S/O.LATE M.A. BABU, SARANGAM, TENRA, 116, THEVALLY, KOLLAM DISTRICT-682304. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: ----------1. JOSEPHINE NEETHU AGED 32, A PERSON OF UNSOUND MIND, REPRESENTED BY HER FATHER AND NEXT FRIEND SILVESTER KADUDOSE) D/O. SILVESTER KADUDOSE, KADUVASSERIL HOUSE, RADHA OIL MILLS ROAD, PACHALAM P.O., KOCHI - 682012. [DELETED] [ "A PERSON OF UNSOUND MIND,REPRESENTED BY HER FATHER AND NEXT FRIEND SILVESTER KADUDOSE" IS DELETED FROM THE CAUSE TITLE AS PER THE ORDER IN IA.NO.1336/17 DATED 04/08/2017]. [ 2. ROSEMARY, AGED 70, W/O. LATE M.A. BABU, SARANGAM, TENRA 116, THEVALLY, KOLLAM - 682304. R. BY ADV. SMT.CAROLIN SINDHU VAZ R2 BY ADV. SRI.BIJU.K. MATHEW R. BY ADV. SMT.SUMATHY DANDAPANI (SR.) R. BY ADV. SRI.K.S.MOHAMED HASHIM THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25/09/2017, THE COURT ON 27-09-2017 DELIVERED THE FOLLOWING: OP (FC).No. 370 of 2016 (R) ---------------------------- ## APPENDIX PETITIONER'S EXHIBITS --------------------P1 COPY OF OP NO. 2297/13. P2 COPY OF OP NO. 2295/2013. P3 COPY OF OP NO. 156/2015. P4 COPY OF IA NO. 2505/2015 IN OP NO. 2295/2013. P5 COPY COUNTER AFFIDAVIT FILED BY THE PETITIONER IN IA NO. 2505/2015 IN OP NO. 2295/2013. P6 COPY OF IA NO. 1851/2015 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM IN OP 2295/2013. P7 COPY OF IA NO. 3396/14 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAMIN OP 2295/2013. P8 COPY OF IA NO. 1825/15 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM IN OP 2295/2013. P9 COPY OF ORDER DT. 07.5.2016 PASSED BY THE FAMILY COURT, ERNAKULAM IN IA NO. 3396/14 IN OP NO. 2295/13. P10 COPY OF ORDER DT. 07.5.2016 PASSED BY THE FAMILY COURT, ERNAKULAM IN IA NO. 1825/15 IN OP NO. 2295/2013. P11 COPY OF ORDER DT. 07.5.2016 PASSED BY THE FAMILY COURT, ERNAKULAM IN IA NO. 1851/15 IN OP NO. 2295/2013. RESPONDENTS' EXHIBITS --------------------- R1(F): THE BILL CUM RECEIPTS ISSUED BY RENAI MEDICITY HOSPITAL. TRUE COPY P.S TO JUDGE ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** O.P.(FC) No.370 of 2016 ---------------------------------------Dated this the 27[th] day of September 2017 ## **J U D G M E N T** ## **Shaffique, J** This original petition is filed challenging Exts.P9, P10 and P11 orders passed by the Family Court, Ernakulam in O.P.No.2295/2013. The original petition is filed by the 1[st] respondent seeking for dissolution of marriage. The petitioner and the 1[st] respondent got married on 16/07/2006 and a child was born to them on 29/10/2008. During the pendency of the original petition, various orders were passed by the Family Court in regard to the custody of the minor child. Petitioner had filed O.P.No. 156/2015 to declare him as guardian of minor child. As per order dated 31/03/2015 in I.A.No.856/2013 by modifying the earlier orders, custody of the child was limited to the petitioner from 10.00 a.m to 1.00 p.m and that too, within the court premises. The petitioner challenged the said order by filing O.P.No. 138/2015 and by judgment dated 17/06/2015, interim custody of the child was given to the petitioner between 10 a.m to 5 p.m on O.P.(FC) No.370/2016 2 all Sundays. Petitioner was also granted liberty to seek modification regarding custody of the minor child. He, therefore filed I.A.No.2536/2015 to modify the order of interim custody. 1[st] respondent also filed an application I.A.No.2507/2015 seeking modification of the earlier order to restrict the visitation rights on alternate Sundays from 1 p.m to 5 p.m. The Family Court passed a common order modifying the earlier orders and limiting custody of the child to the petitioner on every 1[st] and 4[th] Saturdays between 10 a.m and 1 p.m and in the premises of the Court. Petitioner challenged the aforesaid common order by filing O.P. (FC) No.352/2015. This Court modified the order passed by the Family Court by judgment dated 03/08/2015 and interim custody of the child was given to the petitioner from 10 a.m to 5 p.m on all Sundays. Petitioner was also given liberty to take the child outside the Family Court premises and even to Kollam on Sundays which fall during the Onam and Christmas vacations. In the meantime, first respondent filed I.A.No.2505/2015 to appoint the 2[nd] respondent as the next friend/guardian on the allegation that the petitioner was mentally ill and not competent to represent himself or protect his interest. The petitioner also filed I.A.No. O.P.(FC) No.370/2016 3 1851/2015 alleging that the 1[st] respondent is a person of unsound mind and she had undergone treatment for mental illness in several hospitals and therefore a direction be issued to her to appear before the Psychiatrist or Experts for medical examination. Petitioner filed I.A.No.3396/2014 for permission to meet the child in the school premises. He also filed I.A.No.1825/2015 seeking to amend the objection filed by him in O.P.No.2295/2013. 2. The Family Court heard the above three petitions together and dismissed the same by separate orders dated 07/05/2016 which are produced as Exts.P9 to P11. 3. The contention urged by the petitioner is that the Family Court passed non-speaking orders and no attempt have been made to consider the same and pass orders on merits. When an application is filed on the ground that the mental capacity for the 1[st] respondent ought to be tested by appointing a Psychiatrist/Expert, the Court has to conduct an enquiry as contemplated under Order 32 Rule 15 of the Code of Civil Procedure (for short 'CPC'), which apparently has not been done. Further, in regard to I.A.No.3396/2014, there was nothing wrong in permitting visitation rights of the minor child at the School O.P.(FC) No.370/2016 4 premises. The amendment sought for in I.A.No.1825/2015 was for the purpose of stating certain additional facts which would not cause any prejudice to the respondent. Learned counsel submitted that the Court below was not justified in rejecting the above application. 4. Learned counsel for the petitioner placed reliance upon the following judgments: i) **Rasheeda v. Nazeer** _[2011 (3) KLT 218]._ By this judgment, the learned Single Judge held that Order 32 Rule 15 is an inbuilt safeguard by which the Court has to make an enquiry to satisfy itself as to whether a person is incapable of filing a suit by himself or whether a next friend should be allowed to institute the suit on his behalf. ii) **Sharda v. Dharmpal** _[2003(2) KLT 243 (S.C)]_ . By this judgment, the Apex court held that the prime concern of the Court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. The Court can make an enquiry under Order 32 Rule 15 of CPC either suo motu or on an application filed by a party to the proceedings. 5. On the other hand, the learned senior counsel O.P.(FC) No.370/2016 5 appearing for the 1[st] respondent submitted that the above applications were filed only for the purpose of harassing the 1[st] respondent. It is pointed out that custody orders have already been passed and the present attempt is to cause harassment to the 1[st] respondent by making her a person of unsound mind and to ensure that her name is being tarnished even in the School. 5. Learned senior counsel appearing for the 1[st] respondent relied upon the following judgments: i) **Smt.Godawari Devi v. Smt.Radha Pyari Devi** _[AIR 1985 Patna 366]._ This is a Division Bench judgment of the Patna High Court wherein it is held that the issue of unsoundness of mind of the parties is primarily between the Court and the party and is not a lis between the parties themselves. ii) **Andhra Bank v. ABN Amro Bank N.V** _[(2007) 6 SCC 167]._ This judgment of the Apex court was cited to emphasise the point that though an amendment of the written statement is permissible to raise an additional ground of defence, the question to be considered is whether such amendment would be necessary for deciding the real controversy between the parties in the suit. O.P.(FC) No.370/2016 6 iii) **Sharda** _(supra)._ In this judgment, the Apex court held that the question as to whether a person is mentally ill or not, although may be a subject matter of litigation, having regard to the provisions of Order 32 Rule 15 C.P.C, it was held at paragraph 81 as under: _**“81.** To sum up, our conclusions are:_ _1. A matrimonial court has the power to order a person to undergo medical test._ _2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution._ _3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”_ iv) **Raveendran v. Sobhana** _[2008(1) KLT 488]._ In this case, a Division Bench of this Court, while considering provisions of Order 32 Rule 15 held at paragraph 10 as under: _“10. The decision under O.32 R.15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken_ O.P.(FC) No.370/2016 7 _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 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 O. 32 R.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.”_ 6. The argument, therefore, raised by the learned senior counsel is that the application I.A.No.1851/2015 has been filed only as a counter blast when the 1[st] respondent alleged that the petitioner was suffering from mental illness and should be represented by the 2[nd] respondent herein. As far as custody of O.P.(FC) No.370/2016 8 the minor child is concerned, there is no change in circumstance warranting a different view to be taken in the matter. The amendment sought for is absolutely unnecessary as far as cases relating to divorce on specific grounds. Therefore, amendment sought for in the written statement has nothing to do in the claim for custody. 7. As far as I.A No.3396/2014 is concerned, request of the petitioner is to visit the child at the School. Apparently, there is matrimonial dispute between the couple and visitation right of the petitioner has been limited by order of the Family Court as well as this Court. Hence, there is no necessity to visit the child in the School premises which would definitely cause embarrassment to the child. The Family Court was, therefore, justified in forming an opinion that for the welfare of the child, it may not be conducive to permit visitation right to meet the child in the School. Hence, we do not want to interfere with Ext.P9 order. 8. Coming to I.A.No.1825/2015, this is an application seeking incorporation of certain amendments in the written statement. O.P.No.2295/2013 has been filed seeking for dissolution of marriage on the ground of cruelty and on the O.P.(FC) No.370/2016 9 ground that the petitioner is suffering from incurable mental disease for the past more than five years. The amendment sought for as evident from Exts.P8 application has absolutely nothing to do with the defence that is required to be taken in a petition seeking dissolution of marriage on the ground of cruelty and mental illness. Family Court was therefore justified in observing that no new facts or events have occurred in the scenario which requires amendment of the pleadings. As already mentioned, even if an amendment can be incorporated to bring an additional ground for defence, perusal of the amendment sought for does not give any such idea. The statements mentioned thereof has no connection whatsoever with the defence to be taken. By the amendment sought for, petitioner is only trying to narrate that he is capable of taking care of the child and the attitude of the 1[st] respondent changed only after the petitioner had come to Kollam in March, 2013. In a case where cruelty and mental illness is taken as a ground, it is for the person who had filed the case, to prove the allegations. In so far as the petitioner, in his written statement, had denied the allegations, the additional pleadings have no relevance to the subject matter O.P.(FC) No.370/2016 10 and therefore the Family Court, though had passed a cryptic order, was justified in rejecting the said application by stating that new facts or events which had occurred subsequently had not been incorporated Hence, we do not intend to interfere with Ext.P10 order. 9. Now coming to I.A.No.1851/2015, this application is filed to direct the 1[st] respondent to appear before the Psychiatrist/Experts to examine her mental health. In the affidavit filed in support of the above application, the allegation is that the 1[st] respondent is a person of unsound mind and she was treated by Dr.K.S.David of Susrusha Nursing home. It is to prove her mental health that she should be subjected to medical examination by Psychiatrist/Expert. 10. As held by the Apex Court in Sharda (supra), the question to be considered by the Court is whether the 1[st] respondent is capable of prosecuting her case properly. It is held that Court should exercise such power only if the person who files the petition has a strong prima facie case and there is sufficient material before Court. There is no dispute about the proposition of law with reference to Order 32 Rule 15 of the C.P.C, which O.P.(FC) No.370/2016 11 reads as under: ## _**“15. Rules 1 to 14 (except rule 2-A) to apply to**_ _**persons of unsound mind.-** Rules 1 to 4 (except rule 2-A) 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.”_ 10. The Family Court observed, while considering the application, that the attempt is only to humiliate the respondent and in the absence of any bona fides, petition was dismissed. When an application is filed stating that the 1[st] respondent will not be in a position to contest her matter properly, an enquiry under Order 32 Rule 15 is to be conducted. The Court can conduct an enquiry even without sending her to the Psychiatrist/Medical evaluation. Court can examine the said person and come to a finding of its own. The materials placed on record by the petitioner can also be considered. There is necessity for such an enquiry, only if prima facie case exists for taking action under Order 32 Rule 15. When the allegation is without any bona fides O.P.(FC) No.370/2016 12 and without any prima facie materials, there is no reason to conduct even an enquiry under Order 32 Rule 15, since the right of privacy is considered to be a fundamental right of a citizen. In this case, petitioner observes that there are certain medical records to prove the case. In such circumstance, Court below will have to consider the same and if necessary, conduct an enquiry under Order 32 Rule 15 of C.P.C and only if there is prima facie opinion that it is necessary to send the 1[st] respondent for medical evaluation, there is necessity to pass appropriate orders. It seems that Court below had not considered the application in accordance with law. 11. However, in so far as the pleadings are complete, Court can as well consider the application at the time when the trial commences. There is no reason to pass immediate orders in the said application. Accordingly, we are of the view that Ext.P11 order is liable to be set aside and it shall be open for the Family Court to consider I.A.No.1851/2015 at the time of commencement of the trial and pass appropriate orders. In the result, this original petition is disposed of as under: i) The challenge to Exts.P9 and 10 orders are rejected. O.P.(FC) No.370/2016 13 ii) Order in I.A.No.1851/2015 in O.P.No.2295/2013 is set aside. iii) Family Court shall consider the said application afresh and pass appropriate orders in the light of the observations made above. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) **(ANU SIVARAMAN, JUDGE)** jsr