Janaki v. Gopalan

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
Judgment Date: 2007-07-06
Court Decision / Holding: CRP allowed. The Munsiff’s order appointing a guardian is set aside. The court directed personal appearance of Gopalan before the trial court to ascertain his ability to instruct his counsel. If it is found that he cannot instruct, the court will appoint an advocate as guardian ad litem invoking the inherent powers saved under Section 151 CPC. The CMP in CRP 1452/02 was dismissed, and the revision petition was allowed with directions as above.
Final Disposition: CRP allowed; order setting aside the Munsiff’s order; direct personal appearance of Gopalan; possible guardian ad litem if he cannot instruct

Parties to the Case

Appellants / Petitioners

Janaki

Respondents

Gopalan (deaf and dumb)

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.G. Paramweswara Panicker
• Sri Santheep Ankarath

Counsels for Respondents

• Sri Jijo Thomas
• Sri Sherifi P.

Case Synopsis & Summary

In Janaki v. Gopalan, a maintenance suit filed by Janaki, an indigent wife, against her husband Gopalan, who is deaf and dumb, the revision petitioner contends that the Munsiff erred in permitting an application under Order XXXII Rule 3 CPC to appoint a guardian for Gopalan to defend the suit. Janaki argues that guardianship under Order XXXII is limited to minors and persons of unsound mind, and that deafness alone does not render a person incapable of instructing or understanding the proceedings; consequently, no guardian should be appointed. Gopalan’s side, represented by his wife Kalyanikutty (next kin) and counsel, contends that because Gopalan cannot adequately protect his interests in litigation, a guardian is necessary; they rely on the court’s inherent powers and the judgment in Pullikkal Kunhamma v. Pulikkal P.J.Rosakutty to justify guardianship and to defend that he may require someone to represent him in court. The High Court, while recognizing that Order XXXII was not strictly applicable, emphasizes that the welfare of a person who cannot protect his interests warrants careful scrutiny. It directs personal appearance of Gopalan and leaves room for appointing a guardian ad litem under Section 151 if necessary, ultimately allowing the revision petition and setting aside the impugned order to ensure proper inquiry into Gopalan’s capacity to instruct and defend through counsel.

Provisions of Law Cited

Order XXXII Rule 3 CPCRule 15 of Order XXXII CPCSection 151 CPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant argued that Order XXXII Rule 3 CPC deals with guardianship for minors and persons of unsound mind; deafness alone does not render one incapable of instructing. Guardianship is unnecessary; the court should not treat the deaf and dumb as needing a guardian merely due to communication hurdles. The inherent powers under Section 151 CPC should not be invoked to appoint a guardian absent clear incapacity. The focus should be on ensuring fair defence without misusing guardianship.

Contentions of Respondents

The respondent contends that Gopalan cannot protect his own interests in litigation due to his incapacity, hence a guardian (preferably his wife Kalyanikutty) is appropriate to defend the case. Cites Pullikkal Kunhamma v. Pulikkal P.J.Rosakutty to justify guardian appointment and argues that in such situations personal appearance and guardianship are warranted; if necessary, guardian ad litem to be appointed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pullikkal Kunhamma v. Pulikkal P.J.Rosakutty	1996(2)KLT 644	Positive	Cited to support the proposition that the court should direct personal appearance of the person concerned before passing orders and consider guardianship under the court’s inherent powers.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **FRIDAY, THE 6TH JULY 2007 / 15TH ASHADHA 1929** **CRP.No. 1452 of 2002()** **----------------------** ## **I.A.No.652/02 IN OP.3/2002 of MUNSIFF COURT, OTTAPPALAM** **....................** ## **REVN. PETITIONER: RESPONDENT/PETITIONER:** **----------------------------------------** **JANAKI, D/O. VATTANKANDATHIL RAMAN, NELLAYA AMSOM DESOM, OTTAPALAM TALUK.** **BY ADV. SRI.P.G.PARAMESWARA PANICKER SRI.SANTHEEP ANKARATH** ## **RESPONDENTS: PETITIONER/RESPONDENT:** **-----------------------------------** **GOPALAN (DEAF AND DUMB), S/O. PULASSERIKUNNATH RAMAN, CHERPULASSERY AMSOM DESOM, OTTAPALAM TALUK, BY NEXT KIN WIFE KALYANIKUTTY.** **BY ADV. SRI.JIJO THOMAS SRI.SHERIF.P.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/07/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDER ON C.M.P.NO.3646/02 IN C.R.P.NO.1452/02** ## **DISMISSED** **06/07/2007** **Sd/-, PIUS.C.KURIAKOSE, JUDGE** **/True Copy/** **PA to Judge** ## **PIUS.C.KURIAKOSE, J.** - - - - - - - - - - - - - - - - - - - - - **C.R.P.No.1452 OF 2002** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of July, 2007 ## **ORDER** The respondent in an application under Order XXXII Rule 3 of the Civil Procedure Code seeking appointment of a guardian is aggrieved by the order of the learned Munsiff allowing the application filed by one Kalyanikutty, who was the wife of Sri.Gopalan, a deaf and dumb person who was arrayed as the defendant/respondent in the suit which was filed by the petitioner, an informa pauperis. In the civil revision petition, Gopalan represented by next kin wife Kalyanikutty is the respondent and for the sake of convenience I will be referring to Smt.Kalyanikutty as the petitioner in I.A.No.652/02 in O.P.No.3/02. 2. The suit was instituted by the petitioner herein as an indigent person claiming maintenance from her husband Gopalan. According to the petitioner she is the lawfully wedded wife of Gopalan. Gopalan is a deaf and dumb person, he is a drunkard and he got acquainted with Smt.Kalyanikutty, the petitioner in the I.A. Since then CRP.No.1452/02 2 the plaintiff was being treated with atmost cruelty. The plaintiff was driven away from the house and is not being looked after by her husband who is bound to look after her. Hence the suit for maintenance which was filed as an indigent person since the petitioner has no means to pay the court fee. Smt.Kalyanikutty filed the I.A. stating that she is the wife of Gopalan and as the Gopalan is deaf and dumb, she is to be appointed as guardian for defending the case. To the I.A., the petitioner has filed counter contending that the I.A. is not maintainable since Order 32 is not applicable in the case of deaf and dumb persons. It was also contended that Kalyanikutty was not lawful wife of Gopalan and hence she is not entitled to file such an application. The court below under the impugned order allowed the application and appointed Smt.Kalyanikutty as the guardian of respondent Gopalan. 3. I have heard the submissions of Sri.P.G.Parameswara Panicker, senior counsel and Sri.Jijo Thomas, learned counsel for the respondent. Sri.Parameswara Panicker would assail the impugned order and argue that Order 32 of CPC deals with appointment of guardian in the case of minors and persons of unsound minds only. CRP.No.1452/02 3 Rule 15 of that order empowers the court to appoint guardian in the case of persons suffering from mental infirmity. Deafness and dumbness are not akin to unsound mind and minority. Minor and a person of unsound mind will not be able to understand the consequences of his actions. But in the case of deaf and dumb there is no such problem. They will know the pros and cons of their conduct. Their only infirmity is in the matter of communication, More over they do not require guardian. They can get the assistance of persons through whom they can communicate their ideas. Sri.Jijo Thomas, learned counsel for the respondent however would support the impugned order. My attention was drawn by the learned counsel to the judgment of this court in **Pullikkal Kunhamma v. Pulikkal P.J.Rosakutty** ( 1996(2)KLT 644). He submitted that though Gopalan is referred to as deaf and dumb person only, the reality is that he is unable to comprehend the pros and cons of his action without the help of a guardian. He will not able to protect his interest in the suit. Since Kalyanikutty is admittedly the only woman in Gopalan's life now, she will be the most competent person to be CRP.No.1452/02 4 appointed as guardian. Even if the case does not come strictly under Order XXXII, this court's inherent powers under Section 151 are saved and those powers may be invoked for sustaining the impugned order, so submitted the learned counsel. Having considered the rival submissions addressed at the Bar, I am of the view that the learned Munsiff was not justified in invoking the powers under Order XXXII and in allowing the application as prayed for appointing Smt.Kalyanikutty as guardian for Gopalan. At the same time, the submission of Sri.Jijo Thomas that Gopalan is incapable of protecting his interest in the subject matter of litigation without aid of a guardian cannot be ignored. Having regard to the principles laid down by this court in Pullikkal Kunhamma v. Pulikkal P.J.Rosakutty ( 1996(2)KLT 644), I feel that this is a case where learned Munsiff should have directed appearance of Gopalan, the person concerned before the court below before passing orders. Accordingly, setting aside the order, I direct the court below to direct personal appearance of Gopalan before the court. Once Gopalan appears, the court below will put necessary questions to CRP.No.1452/02 5 Sri.Gopalan and if it is revealed in that enquiry that Gopalan is not capable of instructing his advocate properly, the court will appoint an advocate as guardian ad litem invoking the inherent powers of the court which are saved under Section 151 of the CPC. CRP is allowed as above. **PIUS.C.KURIAKOSE JUDGE** sv. CRP.No.1452/02 6