What should a procedure court follow if one spouse alleges that another spouse is the person of unsound mind?

Order XXXII Rule 15 of 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."

8. 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 of any mental infirmity, of protecting their interest when sued or being sued.

9. As early as in 1957, in Balakrishnan v. Kalliyani : 1957 KLT 268, this Court had held that necessarily, the court has to satisfy itself on a proper inquiry, that the defendant, by reason of unsoundness of mind or mental infirmity, is incapable of protecting his interest in the suit, and then only the court could exercise its jurisdiction to appoint a proper person as guardian of the defendant. Acting on a mere allegation that the defendant is a person of unsound mind does not amount to an adjudication, express or implied, on the question of the alleged unsoundness of mind of the defendant. To treat a person, as one incapable of protecting his own interests by reason of unsoundness of mind or mental infirmity, is a very serious matter. It is in recognition of the seriousness of the matter that the legislature has insisted on a proper inquiry being made into that matter to enable the court to come to a conclusion about the mental condition of the person concerned. It is for the court to decide upon the manner in which and to the extent to which  such inquiry has to be conducted to enable it to come to a satisfactory conclusion as to the mental condition of the party concerned. If notice of such inquiry is given to the party, he may himself appear in court and participate in the inquiry. If he appears or is brought before the court, his presence might enable the court to form an impression about his mental condition. If it is deemed necessary, he may be got examined by a medical expert and a certificate obtained as to whether he is mentally fit to protect his own interests.

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. 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) KLT 488).

11. If a decree is passed against a minor without appointment of a guardian, the decree is a nullity and 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. Ram Singh : AIR 1968 SC 954).

 Kerala High Court

Jimshith Lal vs C.K Shabeena on 5 November, 2018

        

              PRESENT

          MR.JUSTICE C.K.ABDUL REHIM

                                &

       MR. JUSTICE R. NARAYANA PISHARADI

 

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Whether a deaf and dumb person can file suit through next friend?

 Similarly, in Raveendran v. Sobhana (2008 (1) KLT

488), a Bench of this court considered the question whether a

deaf and dumb person can be said to be a person suffering from

mental infirmity. It was held that “mental infirmity is not mental

disorder. It is not mental illness or unsoundness of mind or

insanity. It only indicates the weakness of intellect and in the

particular context of Order 32 Rule 15, weakness of intellect to

the extent of making a person incapable of protecting his

interest in the litigation. Thus a person who is not of unsound

mind may, yet be a person who is mentally infirm, thus entitling

him to the protection under Order 32 Rule 15. Idiocy or

unsoundness of mind indicates an abnormal state of mind,

whereas mental infirmity only indicates weakness of mental

strength. The scope of enquiry under Order 32 Rule 15 is the

assessment of the capability of a person either of unsound mind,

or suffering from any mental infirmity deafness or dumbness as

to whether such defects are infirmity or weaknesses would

render a person incapable of communicating his views, wishes or

thoughts. Thus, the legal position is that mental infirmity in the

context of Order 32 Rule 15 is not mental disorder, insanity or

mental illness. Weakness of mind due to any reason, making a

person incapable of protecting his interests, is sufficient to unfold

the protective umbrella under Order 32 Rule 15. Such infirmity

can also be caused by physical defects like deafness or

dumbness, whereby a person is made incapable of

communicating his wishes, views or thoughts to others who are

not acquainted with him”.

21. Sri. Alias M. Cherian contended vehemently, that, the

enquiry contemplated under Order 32 Rule 15 was not carried

out by the trial court and the omission has vitiated the entire

proceedings before trial court and the impugned judgment as

well. According to him, failure of the trial court to adjudicate

upon the capability of the plaintiff to protect her interests has

resulted in a serious error in the procedure adopted. The counsel

referred us to several decisions of this Court, including

Rasheeda v. Nazeer (2011 (3) KLT 218), Balakrishnan v.

Kalliyani (1957 KLT 268), Cleetus v. South Indian Bank (2007

(3) KLT 868) and canvassed that it is obligatory on the part of the

court to conduct a judicial enquiry as to the capacity of the

plaintiff, especially since grant of such a permission to the next

friend to institute a suit would certainly affect the civil rights of

the plaintiff.

22. Even though the aforesaid submissions were impressive

on first blush, on going through the records we find that factually

there is a difference in this case on a few material circumstances.

These material differences persuade us to first appreciate on the

happenings in the court below, instead of applying the decisions

relied on by Adv.Sri.Alias M.Cherian. Records reveal that a

separate application was filed by the next friend, who is none

other than plaintiff’s own daughter, as I.A. No. 995 of 2011, on

the date of filing of the suit itself, seeking permission to institute

the suit, through a next friend. The said application was allowed

after taking a composite statement for appointment of a next

friend as well as for permission to sue as an indigent person. The said order was never challenged by the defendants. Accepting

that I.A. No.995 of 2011 was allowed at the numbering stage,

when the defendants were yet to appear, still, the need for

appointment of a trained interpreter for helping the plaintiff to

give evidence as PW1, that too in the presence of the 1st

defendant, was felt and understood by the court and the same

was also not objected to by the defendants. Further, at the time

of trial, the plaintiff while being examined as PW1 deposed

through the interpreter, that, she has instituted the suit and also

produced Ext.A3 to prove that she is deaf and dumb and there

was no cross-examination even on that aspect. Plaintiff’s

ratification before the court during her deposition, regarding the

filing of the suit, renders all technical objections relating to the

defects of appointment of a next friend and of the next friend’s

eligibility to institute the suit, otiose. In such circumstances, we

reject the arguments of the appellant against the appointment of

a next friend and hold that the appointment of a next friend in

the facts and circumstances of the case was proper.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR.JUSTICE S.V.BHATTI

&

 MR. JUSTICE BECHU KURIAN THOMAS

R.F.A (INDIGENT) No.306 OF 2019

MARY Vs  LEELAMMA

Dated this the 30th day of June, 2020

Bechu Kurian Thomas , J.

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Whether it is mandatory for court to hold enquiry in petition for annulment of marriage if wife is suffering from mental illness?

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

17. Giving opportunity of hearing should be meaningful and with a purpose. If a person is too poor to appoint a lawyer, unless legal aid is given to him, he cannot defend himself. Similarly, giving opportunity of hearing to a person suffering from mental illness, is giving him no opportunity unless he is given the assistance of a Guardian-at-litem, who can take care of this defence. It may be that a person may not appear to be mentally insane sometimes, If he is having lucid attacks at intervals. When he is not having such attacks, he may look perfectly normal, but whenever, he is having attack, he would be incapable of defending himself. Even in such cases, Order 32 Rule 15 must be strictly complied. Otherwise, a person looking normal, may contest the proceedings against him, but at any crucial moment, if he suffers from attack of mental disorder, he would not be in a position to take necessary steps to defend himself.

18. It was therefore, necessary for the trial Court to hold enquiry as contemplated under Order 32 Rule 15.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 384

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Whether the court must appoint Guardian-at-litem to wife prior to passing of decree for annulment of marriage on ground of her mental illness?

The facts referred above, disclose that there are serious allegations of mental disorder of Seema, the respondent in the HMP filed by her husband. In fact, the husband has claimed annulment of marriage on the ground of mental disorder. Even the medical evidence was laid showing that she was taking treatment for mental disorder. In such circumstances, it was bounden duty of the trial Court as well as the First Appellate Court to hold inquiry as to whether she was capable of defending herself or not.

9. In Ramchandra Arya Vs. Mansingh-MANU/SC/0352/1967 : AIR 1968 SC 954, it is held that decree against the lunatic without appointment of Guardian-at-litem is nullity and the sale held in execution of the decree is also void-ab-initio.

10. In Tipanna Vs. Somnath 1990 I BCR 677, it is held that decree against the person of unsound mind, without appointment of Guardian-ad-litem is void ab-initio.

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

 Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: AIR 2019 Bom 22

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What is duty of court if petitioner in Hindu marriage petition is alleged to be person of unsound mind?

Order XXXII Rule 15 reads as under :-

"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."

7. It is, therefore, obvious that either a litigant has to be adjudged as being mentally challenged and incapable of conducting the matter or the Court must find on enquiry that such person would be incapable of protecting his/her interest in the matter.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6989 of 2016

Decided On: 15.06.2017

 Sushma  Vs Umesh

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2018(1) MHLJ 51

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Procedure to be followed by court for appointing guardian to lunatic in civil suilt

Civil - unsoundness of mind - Order 32 Rule 15 of Code of Civil Procedure, 1908 - to declare a person lunatic only evidence of medical expert be upheld - Order of Judge dismissing petition for appointment of next friend set aside - Judge failed to examine plaintiff under Order 32 Rule 15 of Code - Order passed is illegal - opinion of doctor held to be opinion of expert under Section 45 of Evidence Act - petition remanded to Court below.

 From these decisions, the fallowing principals emerge :

(1) Order XXXII, Rule 15 C. P. C. places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rules. 1 to 14.

(2) Order XXXII Rule 15 C. P. C. applies not only to a person adjudged to be of unsound mind, as under the old Code, but also to a person of weak mind.

(3) Where it is alleged that a party to a suit is of unsound mind, and the other party denies it, the Court must hold a Judicial inquiry, and come to a definite conclusion, as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interests in the suit.

(4) Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others.

(5) Whether a person is of unsound mind or mentally infirm for the purpose of the rule and the extent of the infirmity has to be found by the Court on inquiry.

(6) Where the question of unsoundness of mind arises not only under Order XXXII, Rule 15 C. P. C. but is also one of the issues in the suit, the Court has amole jurisdiction to enquire into that question, and for that purpose seek medical opinion.

(7) The enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers, and as Courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken.

(8) Of course, the opinion, of a doctor, as is the opinion of any other expert, under Section 45 of the Evidence Act, is only a relevant piece of evidence.

(9) The Court may also compel the attendance cf the alleged lunatic before it, and to submit himself for medical examination. If the alleged lunatic is in custody, the Court may direct the next friend or any other person having custody to produce him before the medical expert for examination.

(10) Where the precaution of judicial enquiry is not observed, the person cannot be declared lunatic, and a guardian cannot be appointed for him.

(11) When a person is adjudged a lunatic Irregularity and improperly, and notice was not served on him, and a guardian alone was allowed to appear and defend the suit and decree was passed owing to the guardian not gutting up a proper defence, the alleged lunatic can treat the decree against him as an ex parte decree, and have it set aside under O. IX Rule 13 C. P. C.

Andhra High Court

Duvvuri Rami Reddi vs Duvvudu Papi Reddi And Ors. on 20 April, 1962

Equivalent citations: AIR 1963 AP 160

Bench: Venkatesam

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