SANJU M S (UNSOUND PERSON) and M K SREENIVASAN and THANKAMMA (UNSOUND PERSON) v REMYA E R

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 O.P.(FC) NO. 728 OF 2022** **AGAINST THE ORDER DATED 16.08.2022 IN I.A.NO.1 OF 2021 IN O.P.NO.12 OF 2017 ON THE FILES OF THE FAMILY COURT, KOTTAYAM** ## **PETITIONERS:** **1 SANJU M S (UNSOUND PERSON) AGED 37 YEARS, S/O M.K.SREENIVASAN, MELETHRAYIL HOUSE, KARAPUZHA P O, VELLOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT,, PIN – 686003, REPRESENTED BY HIS FATHER AND NEXT FRIEND M K SREENIVASAN.** - **2 M K SREENIVASAN AGED 78 YEARS,** **S/O K S KESAVAN, MELETHRAYIL HOUSE KARAPUZHA P O, VELLOOR VILLAGE, KOTTAYAM DISTRICT, PIN – 686 003.** **3 THANKAMMA (UNSOUND PERSON) AGED 73 YEARS, WIFE OF M K SREENIVASAN, MELETHRAYIL HOUSE, KARAPUZHA P O., VELLOOR VILLAGE, KOTTAYAM DISTRICT, PIN – 686003, PETITIONER 3 ALSO REPRESENTED BY 2ND PETITIONER AS SHE IS UNSOUND PERSON)** **BY ADVS.** ## **V.N.SASIDHARAN** **SANTHOSH THOMAS KANDAMCHIRA SARATH SASIDHARAN** 2 O.P.(FC) No.728 of 2022 ## **RESPONDENT:** **REMYA E R** **AGED 35 YEARS,** **ERAMATHUVADAKKETHIL HOUSE, POOVANTHURUTHU PO, PANACHIKADU VILLAGE, KOTTAYAM DISTRICT, PIN – 686012.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.728 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The legality and propriety of Ext.P6 order are under challenge in this Original Petition under Article 227 of the Constitution of India. The Family Court, Kottayam at Ettumanoor as per Ext.P6 order dated 16.08.2022 dismissed I.A.No.1 of 2021 in O.P.No.12 of 2017, which was filed for appointment of 2[nd] respondent in the O.P. as guardian _ad litem_ of respondent Nos.1 and 3 on the ground that both of them are mentally ill. 2. Notice was served on the respondent. Advocate Elsa Mary Thomas entered appearance for the respondent on 10.01.2023 and sought time to file Vakalath. She did not, however, file Vakalath or turn up to make her submissions on behalf of the respondent. 3. Heard the learned counsel appearing for the petitioners. 4. The respondent filed O.P.No.12 of 2017 before the Family Court, Kottayam at Ettumanoor seeking a decree of return of gold ornaments or its money equivalent and 4 O.P.(FC) No.728 of 2022 movables. After receipt of the notice, the petitioners herein entered appearance and filed objection, a copy of which is Ext.P2. One of the contentions raised by the petitioners is that the 1[st] petitioner is mentally ill. Later, the petitioners filed I.A.No.1 of 2022 in O.P.No.12 of 2017 stating that petitioner Nos.1 and 3 are mentally ill and incapable of making their defence. Accordingly, the 2[nd] petitioner sought him to be appointed as guardian of other petitioners for defending O.P.No.12 of 2017. The respondent filed a written objection disputing the said contention. The petitioners have produced Exts.P3(a) to P3(e), which are documents relating to the treatment of the 1[st] petitioner allegedly for mental illness. The Family Court dismissed I.A.No.1 of 2022 as per Ext.P6 stating the sole reason that the respondent was not produced. 5. The learned counsel appearing for the petitioners would submit that without affording an opportunity to substantiate their contention regarding the mental condition of petitioner Nos.1 and 3, the Family Court dismissed I.A.No.1 of 2021. No reason has been stated also in the order. The learned counsel would submit that the procedural 5 ## O.P.(FC) No.728 of 2022 requirements contemplated in Order XXXII, Rule 3 read with Rule 15 of the Code of Civil Procedure, 1908 were not followed, and therefore Ext.P6 order is liable to be set aside. 6. The only reason for dismissing I.A.No.1 of 2021 is that the respondent (inferrably, the 1[st] respondent in O.P.No.12 of 2017) was not produced. This Court in **Raveendran v. Sobhana and another [2008 (1) KHC 607]** held; “10. The decision under Order XXXII, 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 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** 6 O.P.(FC) No.728 of 2022 **(1968 MLJ 150)** , it was held that holding of an enquiry under Order XXXII, 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.” 7. In **Ram Chandra Arya v. Man Singh [AIR 1968 SC 954]** the Apex Court held that if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and void and the said principle is applicable in the case of a person of unsound mind in view of Order XXXII, Rule 15 of the Code. 8. The Family Court as per Ext.P6 order discarded the plea of the 2[nd] petitioner herein that petitioner Nos.1 and 3 are persons of unsound mind and incapable of defending the case on their own. The only reason is that they are not produced in court physically. If there was a direction, the 2[nd] petitioner should have produced other petitioners before the court in order to conduct enquiry for taking a decision regarding their mental ability to defend the case. However, their physical examination is not the sole process by which a finding regarding their mental ability can be ascertained. If 7 ## O.P.(FC) No.728 of 2022 the original petition is proceeded without appointing a guardian for petitioner Nos.1 and 3 and ultimately it is established that they are mentally incapable to defend the case, the entire exercise would be futile since a decree against a person of unsound mind, without appointing a guardian for him, is a nullity. Therefore, the Family Court should have conducted an enquiry on the basis of the available materials and entered into a finding. The law laid down in the aforesaid decisions obliges the Family Court to conduct such an enquiry. 9. In such circumstances, we hold that Ext.P6 order is wrong and unsustainable in law. It is therefore set aside. Hence, this Original Petition is allowed. The Family Court, Kottayam at Ettumanoor is directed to conduct an enquiry in I.A.No.1 of 2021 in O.P.No.12 of 2017 and take appropriate decision in accordance with law. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 8 O.P.(FC) No.728 of 2022 ## **APPENDIX OF OP (FC) 728/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF OP 12/2017 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ETTUMANOOR** **EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS/ RESPONDENTS, DATED 11/11/2021** **EXHIBIT P3(A) TRUE COPY OF BILL FOR THE INPATIENT TREATMENTS ISSUED FROM PUTHUJEEVAN TRUST CHARITABLE HOSPITAL FOR PSYCHOLOGICAL MEDICINE NALUKODY CHANGANACHERRY, DATED 31/08/2014** **EXHIBIT P3(B) TRUE COPY OF THE CASH BILL, DATED 14/12/2015** - **EXHIBIT P3(C)** - **TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM THERE, DATED 26/02/2019** - **EXHIBIT P3(D)** - **TRUE COPY OF THE DISCHARGE CARD FROM THE SAME HOSPITAL DATED 01/01/2018** **EXHIBIT P3(E)** **TRUE COPY OF THE TAX INVOICE, ISSUED FROM SACRED HEART HOSPITAL, PAYNKULAM, THODUPUZHA, DATED 30/05/2022** **EXHIBIT P4 TRUE COPY OF THE PETITION, IA NO. 1/2021 IN OP 12/2017, DATED 10/10/2021 FAMILY COURT ETTUMANUR** **EXHIBIT P5** **TRUE COPY OF THE OBJECTION, DATED 13/01/2022 IN IA NO 1/2021 IN OP 12/2017 BY THE RESPONDENTS BEFORE THE FAMILY COURT, ETTUMANOOR, KOTTAYAM** 9 O.P.(FC) No.728 of 2022 **EXHIBIT P6** **THE CERTIFIED COPY OF THE ORDER IN IA NO. 1/2021 IN OP 12/2017, DATED 16/08/2022 OF THE FAMILY COURT ETTUMANOOR**