Kerala High Court
Jayalal P.S vs Sunantha C on 1 February, 2024
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
OP (FC) NO. 673 OF 2023
OP(OTHERS)324/2017 OF FAMILY COURT,KOLLAM
PETITIONER/RESPONDENT/RESPONDENT:
JAYALAL P.S
AGED 47 YEARS, S/O. PADMANABHA PILLAI,
FORMERLY RESIDED AT PADMA VILASAM, KOONAYIL,
PARAVOOR P.O. AND NOW RESIDING AT " PADMAM".
NEAR PUTTINGAL TEMPLE, PARAVOOR P.O.
KOLLAM, PIN - 691301
BY ADVS.
AJAYA KUMAR. G
FATHIMA MAJEED
RESPONDENT/PETITIONER/NEXT FRIEND:
1 SUNANTHA C
AGED 39 YEARS, D/O. S. CHANDRASEKHARAN,
RESIDING AT SREE GANESH, MEEYANNOOR P.O.
KOLLAM, PIN - 691537
2 RAJASEKHAR C.S
AGED 42 YEARS, S/O. CHANDRASEKHARAN
RESIDING AT SRI GANESH, VILLA NO. 10,
HIPE PARK VILLA, YELOORKKARA ROAD,
MUPPATHADAM P.O. ALUVA, ERNAKULAM,
PIN - 683110
BY ADV K.VIJAYAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
23.1.2024, THE COURT ON 01.02.2024 DELIVERED THE
FOLLOWING:
O.P(FC).673/2023
2
JUDGMENT
Dated this the 1st day of February, 2024
C. Pratheep Kumar, J.
This petition is filed by the respondent in OP(Others). No.324
of 2017 on the file of the Family Court, Kollam, against the order
dated 9.10.2023 in I.A. No.2 of 2022.
2. Petitioner is the husband of 1st respondent and 2nd
respondent is the brother of 1st respondent. The 1st respondent filed
the above O.P before the Family Court, seeking a decree for a sum
of Rs.11,38,320/-, being the value of 51 sovereigns of gold
ornaments and another Rs.14,66,042/- along with interest from the
petitioner herein.
3. When the Family Court posted the above O.P for evidence,
the 2nd respondent filed I.A. No.2 of 2022 praying for appointing
him as next friend of 1st respondent on the ground that on account of
her mental illness, she is not capable of protecting her interest in the
case. The application was strongly opposed by the 1 st respondent.
After hearing both sides, the learned Family Court Judge allowed the
O.P(FC).673/2023
I.A. Aggrieved by the above order, the respondent in the O.P
preferred this OP(FC).
4. Relying upon the decision of this Court in Roy Thomas v.
Lekha Roy, 2019 (2) KHC 130, the learned counsel for the
petitioner would argue that the Family Court ought to have entered
into a definite finding as to the mental status of the 1 st respondent,
before allowing the application. It was argued that, in the absence of
such a finding, the impugned order is not sustainable. He would also
argue that the Family Court ought to have examined the 1 st
respondent through a Medical Board to arrive at a correct finding
regarding her mental status.
5. On the other hand, the learned counsel for the respondent
would argue that there is specific finding by the Family Court, after
proper enquiry, that the 1st respondent is not capable of protecting
her interest and as such it was argued that there is no illegality in the
impugned order.
6. From the impugned order, it can be seen that the Family
Court has conducted enquiry by examining respondents 1 and 2
herein and also relied upon Exhibit C1 Medical Certificate to arrive
O.P(FC).673/2023
at the conclusion that the 1st respondent is not capable to defend
herself due to mental infirmity. Therefore, it can be seen that in the
impugned order, there is a specific finding by the Family Court that
the 1st respondent is not capable of defending herself and that is why
the 2nd respondent herein was appointed as next friend of 1st
respondent.
7. In the decision in Roy Thomas (supra), the Division Bench
of this Court held that there shall be a definite finding as to the
capacity of the party to defend his case. In the above decision, no
such finding was arrived at by the Family Court. Since in the instant
case, there is specific finding regarding the mental status of 1 st
respondent and her incapacity to defend the case, the decision in
Roy Thomas (supra) will not in anyway help the petitioner.
8. It was argued by the learned counsel for the petitioner that
if the original petitioner (1st respondent herein) is examined as a
witness, the truth will come out and that is why the present
application is filed to avoid her from entering the witness box.
9. Since the O.P was filed by the 1 st respondent herein, it is
her burden to prove her case. Though the 2 nd respondent is appointed
O.P(FC).673/2023
as the next friend of the 1 st respondent and examined as a witness in
the O.P, his evidence can be treated only as that of a witness. Even
otherwise, she could examine the second respondent as a witness, if
he is conversant with the facts of the case. Therefore, there is
absolutely no scope for any apprehension of any prejudice to the
petitioner. At the same time, appointment of a next friend is
necessary for protecting the interest of the 1st respondent as the
Family Court has, after due enquiry, specifically found that she is
not capable of protecting her interest due to her mental infirmity.
10. We do not find any illegality or infirmity in the impugned
order passed by the Family Court and as such this original petition is
liable to be dismissed.
In the result, this original petition is dismissed.
Sd/-
ANU SIVARAMAN,
JUDGE
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
O.P(FC).673/2023
APPENDIX OF OP (FC) 673/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN O.P
(OTH) NO. 324/2017ON THE FILE OF THE FAMILY
COURT, KOLLAM
EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER HEREIN IN O.P. (OTH324/2017 ON
THE FILE OF THE FAMILY COURT, KOLLAM
EXHIBIT P3 TRUE COPY OF THE IA 2/2022 IN O.P (OTH)
324/2017 ON THE FILE OF THE FAMILY COURT,
KOLLAM WITH ENGLISH TRANSLATION
EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER HEREIN TO I.A. 2/2022 IN O.P.
(OTH) 324/2017 ON THE FILE OF THE FAMILY
COURT, KOLLAM
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 09-10-2023 IN
IA. NO. 2/2022 IN O.P.(OTH) NO. 324/2017 ON
THE FILE OF THE FAMILY COURT, KOLLAM
