Vineesh P.V. Nair v. Sandhya Menon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** ## **OP (FC).No. 373 of 2018** **AGAINST THE ORDER IN IA NO.1207/2017 IN OP 257/2017 of FAMILY COURT, PALAKKAD DATED 25-04-2018** ## **PETITIONER:** **VINEESH P.V. NAIR AGED 32, S/O. VIKRAMAN NAIR, POYYANAM PUZHAYIL, NAVANEETAM, THENKARA, KOLPADAM, MANNARKAD, PALGHAT - 678 582.** **BY ADV. SRI.S.MURALI** ## **RESPONDENT:** ## **SANDHYA MENON** **AGED 26, D/O. SWAMINATHAN, PALLIYIL HOUSE, NEAR DMSB SCHOOL,KODUVAYOOR, KAKKAYUR P.O, PALGHAT DISTRICT,PIN: 678 512.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON 31.10.2018 PASSED THE FOLLOWING:** O.P.(FC) No.373/2018 2 ## **C.K.ABDUL REHIM &** ## **R.NARAYANA PISHARADI, JJ.** ************************** O.P.(FC) No.373 of 2018 ---------------------------------------------Dated this the 31[st] day of October, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** The petitioner is the husband and the respondent is the wife. 2. The petitioner filed O.P.No.257/2017 against the respondent in the Family Court for granting a decree of divorce. His plea is that the respondent is a person suffering from incurable unsoundness of mind and that she has got various mental infirmities. 3. The petitioner filed an application as I.A.No.1833/2017 for directing the respondent to undergo medical examination by a medical board for diagnosing her mental illness. The respondent filed objection to that application. As per Ext.P4 order, the Family Court dismissed that application. The aforesaid order is 3 O.P.(FC) No.373/2018 challenged by the petitioner in this Original Petition filed under Article 227 of the Constitution of India. 4. We have heard learned counsel for petitioner and also the respondent. 5. The Family Court dismissed the application I.A.No.1833/2017 for the reason that the respondent is a T.T.C holder and she is capable of earning income by working as a teacher and also that the petition for divorce is filed without taking steps for appointment of any person as the guardian of the respondent. 6. The application for issuing a direction to the respondent to undergo medical examination is filed by the petitioner under Section 10(3) of the Family Courts Act, 1984. In other words, the purpose of the application is to collect or adduce evidence regarding unsoundness of mind of the respondent. 7. The petition for divorce contains averments to the effect that the respondent is a person suffering from incurable unsoundness of mind and various mental infirmities. The petition for divorce was filed on 20.09.2016. However, the petitioner has not taken any steps for appointment of guardian for the O.P.(FC) No.373/2018 4 respondent inspite of the allegation that she is a person of unsound mind. 8. Order XXXII Rule 15 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') states 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."_ _9._ On a bare perusal of the said provision, it is evident that the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged, but he/she is found by court on inquiry to be incapable of protecting his or her interest, when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. This rule is applicable to two categories of persons. The first category is persons adjudged to be of unsound mind. The second category is persons found by the court on inquiry to be incapable, by reason O.P.(FC) No.373/2018 5 of any mental infirmity, of protecting their interest when sued or being sued. 10. The decision under Order XXXII Rule 15 of the Code 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 or guardian, 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 or guardian 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. Weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order XXXII Rule 15 of the Code (See **Raveendran v. Sobhana : 2008 (1)** O.P.(FC) No.373/2018 6 ## **KLT 488** ). 11. If a decree is passed against a minor without appointment of a guardian, the decree is a nullity and it is void and not merely voidable. This principle becomes applicable to the case of a person of unsound mind in view of Order XXXII Rule 15 of the Code (See **Ram Chandra Arya v. Man Singh : AIR 1968 SC 954** ). 12. However, the fact remains that the petitioner has not taken any steps for appointment of a guardian for the respondent. His attempt is to collect and adduce evidence regarding the mental infirmities of the respondent in the petition for divorce without taking any such steps. If the respondent is actually a person of unsound mind and if any decree is passed in the case without a guardian being appointed for her, the decree would be a nullity. Even in the present Original Petition filed before this Court, the respondent is not represented by a guardian. If she is actually a person of unsound mind, the order, if any, passed against her in this Original Petition would also be a nullity. O.P.(FC) No.373/2018 7 13. In the aforesaid circumstances, we see no illegality or infirmity in the impugned order passed by the Family Court. However, if the petitioner has got a case that the respondent is a person of unsound mind, he is at liberty to take appropriate steps for appointment of a guardian for her in the petition for divorce. If any such application is filed, the petitioner would also be at liberty to seek the indulgence of the court to send the respondent to undergo medical examination as a part of the enquiry contemplated under Order XXXII Rule 15 of the Code. If any such application is filed, the Family Court shall consider it untrammeled by the findings and observations made by it in Ext.P4 order. Consequently, we dismiss the Original Petition reserving liberty of the petitioner as mentioned above. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** ## (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(FC) No.373/2018 8 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE PHOTOCOPY OF THE PLAINT FILED BY THE PETITIONER IN O.P NO.257/2017 ON THE FILE OF HON'BLE FAMILY COURT, PALAKKAD DATED 20.9.2016.** **EXHIBIT P2** **TRUE PHOTOCOPY OF THE I.A NO. 1833/2017 IN O.P NO. 257/2017 ON THE FILE OF HON'BLE FAMILY COURT, PALAKKAD.** **EXHIBIT P3** **TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 3.3.2018.** **EXHIBIT P4** **TRUE PHOTOCOPY OF THE ORDER IN I.A NO. 1833/2017 IN O.P NO. 257/2017 DATED 25.4.2018 OF HON'BLE FAMILY COURT, PALAKKAD.** **RESPONDENT'S EXHIBITS :** **NIL** **TRUE COPY** **PS TO JUDGE**