Kerala High Court
Parakkal Rugmini vs Manoj Kumar.P on 1 November, 2024
OP(C).No.1693 of 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
OP(C) NO. 1693 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 23.10.2023 IN MHOP
NO.78 OF 2023 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II
PETITIONER/PLAINTIFF:
PARAKKAL RUGMINI
AGED 55 YEARS
D/O. BALAKRISHNAN NAIR, , PARAKKAL HOUSE,
IRINGALLUR AMSOM, OLAVANNA DESOM, P.O.
GURUVAYOORAPPAN COLLEGE, CALICUT, PATHEERANKAVU
VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT,,
PIN - 673014
BY ADV K.M.FIROZ
RESPONDENTs/DEFENDANTS:
1 MANOJ KUMAR.P
AGED 52 YEARS
S/O. GOPALANKUTTY NAIR, SRINANDANAM, M.G. NAGAR,
MATHRA.P.O., GURUVAYOORAPPAN COLLEGE, CALICUT,
PANTHEERANKAVU VILLAGE, KOZHIKODE TALUK,
KOZHIKODE DISTRICT -, PIN - 673014
2 THE SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM
3 THE SECRETARY TO GOVERNMENT OF INDIA,
HEALTH AND FAMILY WELFARE DEPARTMENT, MINISTRY OF
HEALTH AND FAMILY WELFARE,ROOM NO.201-D, NIRMAN
BHAWAN, NEW DELHI-110 011 ADDITIONAL R2 AND R3
ARE SUO MOTU IMPLEADED AS PER ORDER DATED
01/10/2024 IN OP(C) 1693/2024
BY ADV KRISHNA T C
OP(C).No.1693 of 2024 2
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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).No.1693 of 2024 3
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VIJU ABRAHAM,J
-------------------
OP(C).No.1693 of 2024
-------------------------------
Dated this the 1st day of November, 2024
JUDGMENT
The above original petition is filed
challenging Ext.P4 order dated 13.10.2023 in MH(OP)
No.78 of 2023 on the files of the IInd Additional
District Court, Kozhikode.
2. It is submitted that the petitioner
preferred an application under Section 14 of the
Rights of Persons with Disabilities Act, 2016
seeking to appoint petitioner as guardian of her
husband for selling joint property jointly owned by
her husband and others. The petitioner's husband
certified to have permanent disability to the tune
of 40% as evident from Exts.P1 and P2.
3. Petitioner was examined as PW1 and
Exts.A1 to A7 were marked. On the side of the
respondent, he was examined as RW1, who supported
the case of the petitioner as well, as evident from
Ext.P3 copy of the deposition of RW1.
4. The District Court dismissed the original
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petition on concluding that there is nothing on
record to prove that husband of the petitioner is
having any mental illness during the relevant time
and refused to consider Ext.P2 certificate, which
is the permanent disability certificate issued by
the competent authority and the court has also
doubted the maintainability of the petition and on
such grounds dismissed the petition as per Ext.P4.
It is challenging the same that the present
original petition has been filed.
5. Petitioner relying on Section 14 of the
Rights of Persons with Disabilities Act,
2016(hereinafter referred to an Act 2016) submits
that the District Court is empowered to adjudicate
the matter. Section 14 of the Act 2016 empowered
the court to provide adequate and appropriate
support to a person who is unable to take legally
bindings decisions and may provide further support
of a limited guardian to take legally binding
decisions on his behalf in consultation with such
person, in such manner, as may be prescribed by the
State Government. The learned counsel for the
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petitioner further contended relying on Rule 7 of
the Rights of Persons with Disabilities (Kerala)
Rules 2020 that the Rules clearly provides about
the factors to be considered by the court or the
designated authority for appointing a limited
guardian and that the court is empowered to call
for supporting documents, consult the person
through the technical expert and after such
exercise, court can adjudge the matter. The
petitioner also relies on the judgment in Abootty
v. Kolangottil Pathumma (2023 (6) KLT 368) in
support of his contentions.
6. I have also heard Sri.V.Ramkumar Nambiar,
learned amicus curiae, learned Government Pleader
as well as the learned DSG (in-charge).
7. A perusal of Ext.P4 order would reveal that
the court has held that the certificate produced by
the petitioner is of the year 2011 and that the
disability of Mr.Radhakrishnan Nair for whom
guardian is to be appointed is not permanent in
nature and there is no evidence on record to
substantiate that whatever the temporary disability
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noted in Ext.A1 on 10.5.2011 still persist as on
the date of filing of the revision petition dated
3.4.2023 and therefore, Ext.A1 was not accepted.
8. This Court in Abooty's case cited supra, has
held that a petition under Section 14 (1) of the
Act 2016 will lie before the District Court. It is
true that the certificate produced as Ext.A1 is
dated 10.05.2011 and the same cannot be taken into
consideration for assessing the disability of
Mr.Radhakrishnan Nair in a petition filed on
3.4.2023. A further reading of Rule 7 of Rights of
Persons with Disabilities (Kerala) Rules 2020
specifies the procedure to be followed and the
matters to be considered by the Court for
appointing a limited guardian which may permit the
court to communicate with such person or seek
assistance of technical expert a service of any
person as the court may decide. Therefore, even in
a case where the certificate is produced by the
petitioner is of the year 2011 the court is not
precluded from interacting with the person or to
seek the opinion of the expert for taking a just
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decision in the matter. This Court in Gopakumar v.
Madhusoodhanan Nair (2023 (6) KHC 63), a case
dealing with Order 32 Rule 15 of the Code of Civil
Procedure has also laid down the procedure to be
followed in adjudicating in adjudging a person of
unsound mind and as to whether a person is
incapable of protecting his interest by the reason
of any mental infirmity. Therefore, going by the
judgment in Abootty's case cited supra, the
District Court has power to adjudicate an
application under Section 14 and further Rule 7
provides the procedures to be followed by the court
or the designated authority for arriving at just
decision on a request made under Section 14 of the
Act, 2016. The court could have even call for an up
to date certificate of disability in respect of
Mr.Radhakrishnan Nair. The court while issuing
Ext.P4 order has not followed the judgment in
Abootty's case cited supra, and the provisions of
Section 14 and Rule 7 of Rights of Persons with
Disabilities (Kerala) Rules 2020.
9. In view of the same, I am of the opinion
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that Ext.P1 application requires reconsideration by
the District Court. Accordingly, Ext.P4 is set
aside with a consequential direction to the IInd
Additional District Court, Kozhikode to reconsider
Ext.P1 application filed as MH(OP)No.78 of 2023 and
pass appropriate orders thereon.
The above said direction, the original petition
is disposed of.
sd/-
VIJU ABRAHAM,
JUDGE
pm
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APPENDIX OF OP(C) 1693/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE MH OP NO. 78 OF 2023 ON
THE FILES OF DISTRICT COURT (MADE OVER
TO SECOND ADDITIONAL DISTRICT JUDGE),
KOZHIKODE DATED 03.04.2023
Exhibit P2 TRUE COPY OF THE PERMANENT DISABILITY
CERTIFICATE NO. KL0420819550095531 DATED
10.05.2011 ISSUED BY DISTRICT MEDICAL
OFFICER, KOZHIKODE
Exhibit P3 TRUE COPY OF THE DEPOSITION OF RW1 DATED
19.07.2023 IN MH OP NO. 78 OF 2023 ON
THE FILES OF SECOND ADDITIONAL DISTRICT
COURT, KOZHIKODE
Exhibit P4 TRUE COPY OF THE ORDER DATED 13.10.2023
IN MH OP NO. 78 OF 2023 PASSED BY THE
SECOND ADDITIONAL DISTRICT COURT,
KOZHIKODE
