Kerala High Court
Sudha S vs Satheesh Kumar V.S on 28 June, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
OP (FC) NO. 415 OF 2024
AGAINST THE ORDER DATED 13.02.2024 IN I.A. NO. 2 OF
2022 IN OP NO.2511 OF 2022 OF FAMILY COURT,
THIRUVANANTHAPURAM
PETITIONER/COUNTER PETITIONER IN I.A. 2/2022 &
PETITIONER IN I.A. 4/2023/PETITIONER IN O.P NO. 2511
OF 2022:
SUDHA S.
AGED 66 YEARS
NEDIYAVILA VEEDU, PUTHENKANAM,
KATTACHALKUZHY P.O., VENGANOOR
VILLAGE, THIRUVANANTHAPURAM.,
PIN - 695501
BY ADV J.G.SYAMNATH
RESPONDENTS/PETITIONER IN I.A. NO.2/2022 & RESPONDENT
NO.1 IN I.A. NO. 4/2023 & RESPONDENT NO.2 IN I.A. NO.
2/2022 AND I.A. NO. 4/2023/RESPONDENTS NO.1 & 2 IN O.P
NO.2511/2022:
1 SATHEESH KUMAR V.S.
AGED 47 YEARS
S/O VASANTHAKUMARI, SATHEESH BHAVAN,
KULIKKAVILA VEEDU, KALLIYOOR POST, NEMOM
VILLAGE, THIRUVANANTHAPURAM. FOR AND ON
BEHALF OF THE 1ST RESPONDENT IN O.P.
2511/2022 VASANTHAKUMARI V., W/O LATE
SIVANANDAN, RESIDING AT -DO-AS LEGAL
GUARDIAN., PIN - 695042
2 VASANTHAKUMARI V.
SATHEESH BHAVAN, KULIKKAVILA VEEDU,
KALLIYOOR POST, NEMOM VILLAGE,
THIRUVANANTHAPURAM, PIN - 695042
2
O.P (FC) No. 415 of 2024
3 THE ACCOUNTS OFFICER
(PENSION AND PAY SLIP), PH DIVISION
(SOUTH), KERALA WATER AUTHORITY,
THIRUVANANTHAPURAM, PIN - 695033
BY ADVS.
P.JERIL BABU
P.M.JOHNY
SRINATH GIRISH(K/340/1994)
RETHIN R.(K/1248/2009)
OTHER PRESENT:
SRI JERIL BABU.P, FOR PARTY RESP.
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING ON 28.06.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
O.P (FC) No. 415 of 2024
JUDGMENT
Raja Vijayaraghavan, J.
This petition is filed under Article 227 of the Constitution of India,
challenging the order dated 13.02.2024 in I.A No. 2 of 2022 in O.P. No.
2511 of 2022, on the file of the Family Court, Thiruvananthapuram.
2. O.P.No.2511 of 2022 was filed by the petitioner herein,
seeking a declaration that she is the legally wedded wife of a certain late
A. Sivanandan. Her prayer in the said petition was to include her name as
legal heir in the pension papers of late Sivanandan. In the said petition,
the petitioner had arrayed the 2nd respondent herein as the respondent.
Her contention is that the name of the 2nd respondent has been
recorded in departmental records as the legal heir of the deceased
Sivanandan and the authority has been disbursing family pension to the
2nd respondent herein.
3. On receipt of notice, the 2nd respondent appeared before
the Court and an application was filed as I.A. No. 2 of 2022 by the son of
the 2nd respondent, seeking to appoint him as the legal guardian of his
mother. In the said application, he stated that his mother was suffering
from Brain Schizophrenia and has been assessed with non-progressive
mental disability at 42%. He also contended that the Sub Divisional
Magistrate, Thiruvananthapuram, in his capacity as the jurisdictional
authority under Section 14 of the Rights of Persons with Disabilities Act,
has appointed him as the limited guardian of his mother. He also asserted
that his mother, being afflicted with Schizophrenia, is not in a position to
understand the nature of proceedings and to defend herself in the
Original Petition.
4. The petitioner filed a detailed objection to the application
filed by the son. She contended that the certificate issued by the Sub
Divisional Magistrate under Section 14 of the Rights of Persons with
Disabilities Act, 2016 cannot be relied upon to appoint a guardian. She
also filed a separate application as I.A. No. 4 of 2023, seeking to refer
the 2nd respondent herein to a Medical Board to ascertain her mental
status.
5. The Family Court, Thiruvananthapuram, directed the
production of the mother before the Court for inquiry under Order XXXII
Rule 15 of the CPC. An enquiry was conducted by putting certain
questions and the answers given by the 2nd respondent was taken into
account. The Family court proceeded to hold that the 2nd respondent
was unable to comprehend the question and to give logical answers.
The Family court also adverted to the certificate issued by a Medical
Board constituted under the Rights of Persons with Disabilities Act, 2016
as well as the consequential order passed by the Sub Divisional
Magistrate appointing the son as the limited guardian of his mother. The
Family court went on to hold that the 2nd respondent was suffering from
Schizophrenia and was unable to understand the nature of proceedings
and defend the case. The application filed by the petitioner was
accordingly dismissed that it was unnecessary in the facts and
circumstances to send the 2nd respondent therein to a Medical Board.
6. Sri. J.G. Syamnath, the learned counsel appearing for the
petitioner, submitted that the exercise carried out by the learned Family
Court cannot be sustained under law. According to the learned counsel,
the certificate said to have been issued in exercise of the powers of the
Sub Divisional Magistrate under the Rights of Persons with Disabilities
Act, 2016 could not have been taken note of by the Family Court, to
conclude that the lady was suffering from any mental disability, as the
said certificate was issued solely for the purpose of grant of family
pension. The learned counsel also referred to the observations made by a
learned Single Judge of this Court in Order dated 21.08.2023 in C.R.P No.
110 of 2017, and it is argued that asking some questions to the individual
concerned would not satisfy the mandate under Order XXXII Rule 15 of
the CPC. According to the learned counsel, the Family Court ought to
have referred the 2nd respondent to a Medical Board to ascertain
whether she was suffering from any mental ailments.
7. The learned counsel appearing for the respondents has
vehemently opposed the submissions. It is submitted by the learned
counsel that as per the provisions of the Act, all that is required is for the
Court to arrive at a subjective satisfaction regarding the incapability of a
person who is stated to be of an unsound mind to defend the suit
properly. The learned counsel would submit that the certificate issued
under Section 14 of the Act, by the Sub Divisional Magistrate, on the
basis of the inquiry conducted by the Medical Board, was rightly accepted
by the Family Court as an additional material to conclude that she is
incapable of defending herself. To substantiate his contention, the
learned counsel has relied upon the judgments rendered by a Division
Bench of this Court in Jimshith Lal v. C.K.Shabeena and Another1,
Roy Thomas v. Lekha Roy2, and Raghavan M.K. v. Moodan
Kuthirummal Karthiyani (Deaf and Dumb)3.
8. We have carefully considered the submissions advanced and
have gone through the records.
9. We have already adverted to the facts above. Order XXXII
Rule 15 of the Code of Civil Procedure read thus:
[(2018) 5 KHC 332]
[(2019) 2 KHC 130]
[(2021) 5 KHC 619]
15. Rules 1 to 14 (except Rule 2-A) to apply to persons of unsound
mind.--Rules 1 to 14 (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 question as to whether a person is mentally ill or not
although may be a subject matter of litigation, the court having regard to
the provisions contained in Order 32 Rule 15 of the Code of Civil
Procedure, Section 41 of the Indian Lunacy Act as also for the purpose of
judging his competence to examine as a witness may issue requisite
directions. 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.
(See Sharda v. Dharmpal4). The court is empowered to satisfy itself
as to whether a party before it suffers from mental illness or not either
for the purpose of appointment of a guardian in terms of Order XXXII
Rule 15 of the Code of Civil Procedure or Section 41 of the Indian Lunacy
Act as also for the determination of his competence as a witness. The
decision under Order XXXII Rule 15 of the Code involves 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
[(2003) 4 SCC 493]
such circumstances, a court has the obligatory duty to enquire into the
need for appointment of a next friend or guardian and has the duty to
consider whether the person of unsound mind or of mental infirmity
appearing before it is indeed capable of protecting his or her interest. If
that person is not capable of protecting his interest on his own, the court
has an obligation to protect his interest his/her by appointing a next
friend or guardian. At the same time, if the court finds on enquiry that
such person is capable of protecting his own interest, the court is obliged
to ensure that a guardian or next friend is not imposed upon 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
interest is sufficient to unfold the protective umbrella under Order XXXII
Rule 15 of the Code. (See Ravindran v. Sobhana5, Jimshith Lal v.
C.K. Shabeena and Another6).
11. In the case on hand, the learned Family Court initiated an
enquiry and ordered the appearance of the 1st respondent herein.
Questions were put to ascertain the competency of the respondent to
defend the proceedings and protect her interest. The Court found that
the respondent was unable to comprehend the questions put by the
court or to give rational answers. The court had also occasion to peruse
[2008 (1) KLT 488]
[2018 (5) KHC 332]
the certificate issued by the Medical Board which disclosed that the 1st
respondent is suffering from Schizophrenia and assessed to her 42%
disability. The order issued by the Sub Divisional Magistrate on
27.10.2021 appointing the son as the limited guardian of his mother by
invoking powers under Section 14 of the Rights of Persons with
Disabilities Act, 2016 and Rule 4 and 9 of the Rights of Persons with
Disabilities (Kerala) Rules, 2020 was also adverted to. It was on its basis,
that the learned Family court had conducted that there were sufficient
materials to hold that the 2nd respondent herein was suffering from
mental infirmity and that she is unable to protect her own interest.
12. The scope and ambit of the power and jurisdiction by a High
Court under Article 227 was explained by the Hon'ble Supreme Court in
Estralla Rubber v. Dass Estate (P) Ltd.7 It was held that the High
Court is not vested with any unlimited prerogative to correct all kinds of
hardships or wrong decisions made within the limits of the jurisdiction of
the subordinate courts or Tribunals. The power under Article 227 is to be
exercised sparingly in appropriate cases like when there is no evidence at
all to justify or the finding is so perverse that no reasonable person can
possibly come to such a conclusion that the court or Tribunal has come to
and that it is axiomatic that such discretionary relief must be exercised to
JT 2001 (7) SC 657
ensure there is no miscarriage of justice. Supervisory jurisdiction is not to
correct every error of fact or even a legal flaw when the final finding is
justified or can be supported.
13. In the facts and circumstances of the case, we do not think
that any interference is warranted.
This Original Petition is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.M.MANOJ,
JUDGE
APM
APPENDIX OF OP (FC) 415/2024
PETITIONER EXHIBITS
Exhibit-P1 A TRUE COPY OF THE ORIGINAL PETITION
VIDE O.P. 2511/2022 PENDING BEFORE THE
FAMILY COURT, THIRUVANANTHAPURAM
Exhibit-P2 A TRUE COPY OF THE PETITION VIDE I.A.
2/2022 IN O.P. 2511/2022 FILED BEFORE
THE FAMILY COURT, THIRUVANANTHAPURAM
Exhibit-P3 A TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER TO I.A. 2/2022
IN O.P. 2511/2022 BEFORE THE FAMILY
COURT, THIRUVANANTHAPURAM
Exhibit-P4 A TRUE COPY OF THE PETITION VIDE I.A.
4/2023 IN O.P. 2511/2022 FILED BEFORE
THE FAMILY COURT, THIRUVANANTHAPURAM
Exhibit-P5 A TRUE COPY OF THE COMMON ORDER DATED
13-02-2024 OF THE FAMILY COURT,
THIRUVANANTHAPURAM IN I.A. 2/2022 &
