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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Whether it is necessary to obtain permission of court for filing of suit by next friend on behalf of minor?

A bare reading of Order XXXII, Rule 1 of the Code makes it amply clear that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the "next friend" of the minor. The next friend need not necessarily be a duly appointed guardian as specified Under Sub-section (b) of Section 4 of Hindu Guardianship Act. "Next friend" acts for the benefit of the "minor" or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The afore-said provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order XXXII of the Code. Order XXXII Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a minor and (b) where the suit is filed against a minor. In case, where the suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the Plaintiff to get the appropriate guardian ad litem appointed by the Court for such minor.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 22969 of 2017

Decided On: 08.01.2018

Nagaiah  Vs.  Chowdamma (dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

Citation: 2018(5) MHLJ 1

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Basic concepts of CPC 4 -definitions

Commission

Commission refers to an authority which is appointed to exercise a power or direction issued by court,when for instance a witness is unable to attend court on account of his illness or other similar reasons, the court can order such a witness to be examined on commission.

Under S 75 of CPC, commission can be issued by court for several purposes, as for instance to examine witnesses, to make a local investigation, to adjust accounts, to make a partition and so on.

Letter of request/Rogatory letter

A letter of request or rogatory letter is a letter issued by a court of one country to a court in a foreign country requesting for some judicial assistance from Judiciary of that country. Such assistance may be in the form of request to serve a summons or to take evidence of specified person.

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Whether person who is not appointed by court as guardian can work as next friend of minor child?

A bare reading of Order XXXII, Rule 1 of the Code makes it amply clear that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the "next friend" of the minor. The next friend need not necessarily be a duly appointed guardian as specified Under Sub-section (b) of Section 4 of Hindu Guardianship Act. "Next friend" acts for the benefit of the "minor" or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The afore-said provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order XXXII of the Code. Order XXXII Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a minor and (b) where the suit is filed against a minor. In case, where the suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the Plaintiff to get the appropriate guardian ad litem appointed by the Court for such minor. A "guardian ad litem" is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs. Various High Courts have also adopted this view. The Madras High Court in Kaliammal, minor by Guardian, Patta Goundan v. Ramaswamy Goundan MANU/TN/0124/1948 : AIR 1949 Mad. 859 observed that there is no need of sanction of the Court for a next friend to sue, if he is not incapacitated. This was also the view taken by the High Court of Allahabad in K. Kumar v. Onkar Nath MANU/UP/0019/1972 : AIR 1972 All. 81.

 To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor Defendant in the suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a "next friend" and a "guardian ad litem" is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a Defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 22969 of 2017

Decided On: 08.01.2018

Nagaiah and Ors. Vs.  Chowdamma (dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

Citation: (2018) 2 SCC 504,2018(5) MHLJ 1

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Whether it can be presumed that guardian was negligent if suit was proceeded exparte against minor?

 However the position may be different in a case where the fraud or negligence is alleged against the guardian. What amounts to negligence must depend on the facts of each case. What has to be considered is whether by reason of the conduct of the guardian the minor has been prejudiced and lost a valuable right. It was held by this court in Gangadharan v. Narayanan (MANU/KE/0058/1959 : AIR 1959 Kerala 169), that the mere fact that the guardian remained ex parte is not sufficient to establish negligence. It must further be shown that there was a real defence to the action. Once it is held that the minor was represented by the Guardian/mother and had become ex parte, and it is found that there is negligence on the part of the mother in prosecuting the case, the question is whether such a decree against the minor requires to be set aside. As already indicated, Order XXXII Rule 3A clearly indicates that no decree passed against a minor shall be set aside merely on the ground that the Guardian had an interest in the subject matter of the suit whereas it has to be shown that prejudice has been caused to the interest of the minor. Though in the case on hand, guardian ad litem has not been appointed by the Court, the mother represented the minor and had appeared, contested and filed objection on her behalf and on behalf of the minor, opposing the claim of the petitioner in the case. She had no interest adverse to that of the minor. But she did not prosecute the case and remained ex parte. She did not take any steps to set aside the ex parte decree on behalf of the minor within a reasonable period. Materials placed on record would show that the petitioner does not have a valid defence in that case especially in the light of the DNA report. What purpose will be served in reopening the matter is also not explained. Under such circumstances, we are of the view that condoning the delay of such a long period and setting aside the ex parte decree was unwarranted.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 540 of 2016 (R)

Decided On: 31.03.2017

Abdul Salam Vs. Chalil Sajitha and Ors.

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

Citation: AIR 2017 Kerala 151

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Whether prejudice will be caused to minor child if his father is not appointed as his guardian?

In the present case, what has happened is that an application for appointment of a guardian was filed in I. A. 242 of 1958 supported by an affidavit-Ex. A-3, The third defendant who was the natural father of the plaintiff was proposed as guardian and the affidavit in support of the application contained an averment that Ramaswami, the natural father, has no adverse interest against the minor and that he was a proper person to be appointed as guardian. The affidavit also contained an averment that in case Ramasami was not willing to act as guardian, a Court guardian may be appointed. The court issued notice on 28-2-1958 on the application and the application was posted to 3-3-1958. Ramaswami, the natural father was served with notice. The application was called on 3-3-1958 and Ramaswami expressed his willingness to be the guardian, Krishnammal, that is, the adoptive mother, also appeared on that day and expressed her willingness to be the guardian and Krishnammal would appear to have filed a vakalat also, dt. 3-3-1958 (Ex. A-2). It may be noted that although Krishnammal's name was not mentioned in the affidavit filed in support of the application, she appeared in Court and expressed her willingness to be appointed as guardian and in fact filed a vakalat representing as guardian. Ramamsami who had no interest adverse to that of the adopted son represented his son in the further proceedings and he filed an appeal against the preliminary decree on his behalf and as guardian of his son and in the second appeal in the High Court he represented the minor's interest. He put forward the adoption of the minor in the above proceedings and no contention was put forward by him contrary to the minor's interest. In the above circumstances, it cannot be said that any prejudice has been caused to the minor on account of the formal defect in not passing a formal order appointing him as guardian ad litem to the minor. A Full Bench of the Patna High Court in Ram Asray v. Sheonandan, AIR 1916 Pat 267 , held that where in a suit any application of guardian ad litem is made and the guardian nominated in the application is allowed to represent the minor at the trial, a mere omission to make a formal order of appointment as guardian is not fatal to the suit. In Nirmal Chandra v. Khandu Ghose MANU/WB/0115/1965 : AIR1965Cal562 a similar view was taken. Banerjee, J. observes as follows:

"The doctrine of substantial representation is a matter of substance and not of form. Where a minor who was effectively represented in a suit by a guardian although not formally appointed, suffers no prejudice on account of the informality, the absence of a formal order of appointment of a guardian is not fatal to the suit. In this view I find support from the following observations of the Privy Council in (1903) 30 Ind App 182 ."
10. Following the above decisions, I am of opinion that the minor's interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, and that there has been a substantial representation of the minor in the former suit.
IN THE HIGH COURT OF MADRAS

Second Appeal No. 1153 of 1968

Decided On: 04.02.1972

 Rangammal Vs. Minor Appasami and Ors.

Hon'ble Judges/Coram:
Raghavan, J.
Citation:AIR 1973 Madras 12

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What is doctrine of substantial representation?

In the present case, what has happened is that an application for appointment of a guardian was filed in I. A. 242 of 1958 supported by an affidavit-Ex. A-3, The third defendant who was the natural father of the plaintiff was proposed as guardian and the affidavit in support of the application contained an averment that Ramaswami, the natural father, has no adverse interest against the minor and that he was a proper person to be appointed as guardian. The affidavit also contained an averment that in case Ramasami was not willing to act as guardian, a Court guardian may be appointed. The court issued notice on 28-2-1958 on the application and the application was posted to 3-3-1958. Ramaswami, the natural father was served with notice. The application was called on 3-3-1958 and Ramaswami expressed his willingness to be the guardian, Krishnammal, that is, the adoptive mother, also appeared on that day and expressed her willingness to be the guardian and Krishnammal would appear to have filed a vakalat also, dt. 3-3-1958 (Ex. A-2). It may be noted that although Krishnammal's name was not mentioned in the affidavit filed in support of the application, she appeared in Court and expressed her willingness to be appointed as guardian and in fact filed a vakalat representing as guardian. Ramamsami who had no interest adverse to that of the adopted son represented his son in the further proceedings and he filed an appeal against the preliminary decree on his behalf and as guardian of his son and in the second appeal in the High Court he represented the minor's interest. He put forward the adoption of the minor in the above proceedings and no contention was put forward by him contrary to the minor's interest. In the above circumstances, it cannot be said that any prejudice has been caused to the minor on account of the formal defect in not passing a formal order appointing him as guardian ad litem to the minor. A Full Bench of the Patna High Court in Ram Asray v. Sheonandan, AIR 1916 Pat 267 , held that where in a suit any application of guardian ad litem is made and the guardian nominated in the application is allowed to represent the minor at the trial, a mere omission to make a formal order of appointment as guardian is not fatal to the suit. In Nirmal Chandra v. Khandu Ghose MANU/WB/0115/1965 : AIR1965Cal562 a similar view was taken. Banerjee, J. observes as follows:

"The doctrine of substantial representation is a matter of substance and not of form. Where a minor who was effectively represented in a suit by a guardian although not formally appointed, suffers no prejudice on account of the informality, the absence of a formal order of appointment of a guardian is not fatal to the suit. In this view I find support from the following observations of the Privy Council in (1903) 30 Ind App 182 ."
10. Following the above decisions, I am of opinion that the minor's interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, and that there has been a substantial representation of the minor in the former suit.
IN THE HIGH COURT OF MADRAS

Second Appeal No. 1153 of 1968

Decided On: 04.02.1972

 Rangammal Vs. Minor Appasami and Ors.

Hon'ble Judges/Coram:
Raghavan, J.
Citation:AIR 1973 Madras 12

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