What is the basic concept of "parens patriae" under Indian law?

 The doctrine of "parens patriae" is a legal concept derived from English common law, which translates to "parent of the country" in Latin. In essence, it refers to the inherent power and authority of the state to act as a guardian for individuals who are unable to take care of themselves or who are deemed legally incompetent. The state intervenes to protect the interests of those individuals, particularly children, the mentally ill, and other vulnerable groups.

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Can the court appoint the next friend if the person is suffering from mental infirmity due to physical defects?

In Raveendran Vs. Sobana AIR 2008 Ker 145= MANU/KE/0754/2007, Kerala High Court had an occasion

to deal with the issue whether a deaf and dumb person can be said to be a person suffering from mental infirmity and as one entitled to protection of Order XXXII Rule 15 of CPC, is the question to be considered. It held mental infirmity is not mental disorder. It is not mental illness or the particular context of Order XXXII Rule 15 of CPC, weakness of intellect to the extent of making a person incapable of protecting his interests 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 XXXII Rule 15 of CPC. Idiocy or unsoundness of mind indicates an abnormal state of mind, whereas, mental infirmity only indicates weakness of mental strength. The proviso applies to dull-witted persons or persons

with lesser degree of intellectual competence. A person who is not

adjudged as one unsound mind under the Lunacy Act is still entitled to the protection under Order XXXII Rule 15 of CPC, if the Court is satisfied that the person before the Court is incapable of protecting his interests, either by reason of unsoundness of mind or intellectual incompetence due to mental infirmity. Mental infirmity may even be due to physical defects, if such defects render a person incapable of receiving any communication or communicating his wishes or thoughts to others. The scope of enquiry under Order XXXII Rule 15 of CPC is the assessment of the capability of a person either of unsound mind or suffering from any mental infirmity like deafness or dumbness, as to whether such defects or infirmities or weaknesses would render a person incapable of communicating his views, wishes or thoughts. {Para 20}

21. It is further held that the legal position is that mental infirmity in the context of Order XXXII Rule 15 of CPC is not mental person able of protecting his interests, is sufficient to unfold the protective umbrella under Order XXXII Rule 15 of CPC. 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. If such a person is before the Court in a suit or proceedings either as plaintiff or defendant, the Court has a jurisdictional

obligation to conduct an enquiry as to whether the person is capable of protecting his own interests. If in the judicial enquiry, if necessary and if required, conducted with the assistance of an expert, it is found that such person is incapable of protecting his interests in the suit or proceedings before the Court, the Court has an obligation to appoint a next friend for such person, and if the Court on the other hand finds that the person is otherwise capable of protecting his interests without a next friend, the

Court shall remove the next friend if already available and permit the person, who is alleged to be of unsound mind or suffering from mental infirmity, to conduct the litigation himself. It is also further held a decree passed against a minor without appointment of guardian is a nullity. The same principle would apply as far as a person suffering from unsoundness of mind or mental infirmity is referred to in Order XXXII Rule 15 is concerned.

22. In view of the above said authoritative principle of law, as

discussed supra, the Court below erred in holding that the petitioner herein has not filed medical reports. The Court below did not consider the specific pleading that the person who sought to be appointed as next friend specifically contended that he has no adverse interest to that of plaintiff.Therefore, according to this Court, the petitioner herein aged about 75 years, suffering with various old age ailments including paralysis and hearing problem supported by medical evidence, is entitled for appointment of next friend. Therefore, according to this Court, the Court below erroneously dismissed the application vide I.A.No.514 of 2019 filed by the petitioner vide impugned order dated 26.03.2021 and therefore, the impugned order is liable to be set aside and accordingly set aside.

 IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT: HYDERABAD

CORAM:

 THE HON’BLE SRI JUSTICE K. LAKSHMAN

 CIVIL REVISION PETITION No.1389 OF 2021

 

 M.Sudhakar @ M.Sudhakar Rao  Vs. Peerajee @ Reddy 

Delivered on: 17-11-2021

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Whether Identity of mentally ill person should not be disclosed even in judgments of courts?

 In line with Section 23 (1) of the Mental Healthcare Act, 2017,
(Act 10 of 2017) and the right to privacy of the accused herein,
while taking further action on this judgment, we direct the
Registry to not disclose the actual name of the accused and other
pertinent information which could lead to his identification as it
concerns confidential information. In this context we shall
address the accused herein as ‘accused x’.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) NO. 301 OF 2008
IN
CRIMINAL APPEAL NO. 680 OF 2007

ACCUSED ‘X’  Vs  STATE OF MAHARASHTRA 

N. V. RAMANA, J .
Dated: APRIL 12, 2019

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Whether power of attorney executed by mentally infirm person is legal and valid?

Where the principle was found to be old, feeble, week and mentally infirm and not in a position to think independently for herself, the power of attorney executed by her would become worthless. The principle must be in a position to take an authorisation, continue to exert his or her authority so that the agent binds the principle.

In the above cited case, it was also held that preventing the court from making an enquiry into the mental infirmity of a party by an agent or attorney was obstructing the course of justice. 

Contract - power of attorney and client counsel relationship - Section 183 of Contract Act, 1872, Section 2 of Powers of Attorney Act, 1882, Section 35 of Advocates Act, 1961, Order 32 A Rule 1 of Code of Civil Procedure, 1908 and Clause 12 of Letters Patent - a power of attorney cannot go beyond the principal - principal must be in a position to make an authorization and continue to exert his authority- Client unable to give instructions because of his mental infirmity - Client Counsel relationship comes to an end.

Allahabad High Court

Mahendra Pratap Singh (Deceased) ... vs Smt. Padam Kumari Devi on 22 May, 1992

Equivalent citations: AIR 1993 All 143

Bench: R S Dhavan

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Procedure to be followed by court when suit is instituted by mentally ill or minor through next friend

In a suit of representative character under Order I
Rule 8 of the Code of Civil Procedure, one person may sue or defend
on behalf of all in the same interest with the permission of the Court.
This is why even in these cases, the plaint is accompanied by an

application praying for permission under Order 1 Rule 8 CPC. If Court
grants permission then and then only a suit in the representative
capacity becomes maintainable. Even under the provision of Order VII
Rule 1, the particulars to be contained in a plaint are laid down. In
Clause-(d) of the said rule it is provided that whether the plaintiff or
the defendant is a minor or a person of unsound mind, the statement
to that effect must be given in the plaint. This being a necessary
requirement, even a failure to comply with the same may result in
rejection of plaint under Order VII Rule 11 of the CPC. In the case in
hand, the plaintiff has been described to be a person of unsound
mind by one Nabenendu Bikash Deb. Said Nabendu Bikash Deb has
described himself to be a next kin of the plaintiff and in that capacity
presented the plaint and proceeded with the trial. Reverting to Rule
15 of Order XXXII it appears that it is the Court who is to adjudge a
party to be incapable by reason of any mental infirmity. So holding
someone incapable by mental infirmity is the task given to a Court
and it cannot be taken for granted by merely describing someone as
mentally unsound by a self proclaimed next kin. Rule 3 of the same
order indicates that in case where a defendant is a minor, the Court
shall not only specify status of minority of such defendant but also
Court shall also appoint a proper person to be the guardian ad litem.
This is because under Clause (3) of the said Rule, Court is also satisfy
itself as to whether a person is fit to be so appointed as guardian of
the minor defendant. If it is a case that a defendant is of unsound
mind, by operation of Rule 15, the Court would have been saddled
with two responsibilities, first to hold enquiry and to determine as to
whether the defendant is really a person of unsound mind and then
to make appointment of guardian ad litem on being satisfied that
such a person is fit to be so appointed. Qualification for being a close
friend of the plaintiff or of being appointed as guardian ad litem is
laid down in Rule 4 of the Order XXXII. This, interalia, requires that

such person does not have any interest adverse to the minor or the
person of unsound mind, as the case may be. The first part of Rule 4
relates to plaintiff and so Rule 15 has to be understood keeping in
view the provision of Rule 4 of the CPC. This means that once a plaint
is presented to a Court describing the plaintiff to be a person of
unsound mind and such plaint is presented by a person claiming to be
a next kin of the plaintiff, the Court is duty bound to ascertain as to
whether the plaintiff is really a person of unsound mind, and if so, to
say as to whether the person who has approached this Court claiming
to be a next friend of the plaintiff is qualified in terms of Rule 4 of
Order XXXII, to be next friend of such plaintiff. Once the provision of
Order XXXII is viewed from such angle there is no doubt that this
provision is not a merely procedural one but it has essential judicial
components also. Apart from using the word ‘shall’ in Order XXXII
Rule 15, the judicial exercise of the Court required by the provision
placed this rule at a higher pedestal then a procedural provision. This
Rule, therefore, is mandatory and failure to comply with the same
would make the plaint unentertainable and consequently the suit
would become not maintainable.

In the case in hand, Nabendu Bikash Deb is a self styled
next friend of the plaintiff who did not even urge the Court to make a
necessary adjudication as to the mental capability of the plaintiff
before proceeding to entitlement of the suit and the Court also
proceeded at the mere ipsi dixit of Nabendu Bikash Deb who has no
jural connection with the property. In that view of the matter the
learned lower appellate Court has not committed any error in holding
that the suit itself was defective and not maintainable for non-
compliance of the provision of Order XXXII Rule 15 CPC.

IN THE GAUHATI HIGH COURT

RSA 98/2003
 On the death of appellant No. 1, Sri Binoy Bhusan Choudhury,
Vs
Smti Rekha Rani Deb
  
BEFORE
HON’BLE Mr. JUSTICE N. CHAUDHURY

Date of delivery of Judgment :: 06.02.2014
Citation; AIR 2014 Gauhati 50

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Precaution to be taken by Magistrate prior to sending mentally ill person to mental hospital

 We have also quoted the order passed by the Magistrate. The Magistrate' first order merely states that the Magistrate perused record, s

asked questions and then states that she was required to be examined by civil surgeon. So the first requirement of Section 24 of the 1987 Act to form an opinion for examination of the person to assess his capacity to understand was not met by the learned Magistrate. Second requirement under Section 24(1)(b) is for the protected person to be examined by the medical officer. This power can be exercised by the Magistrate only if he is satisfied under sub-section (a) of sub-section (1) of section 24 of the Act after examining the person and assessing his capacity to understand. Therefore, the Magistrate from very inception was wrong to refer petitioner No.1 for examination by a medical officer. After the medical examination, if the Magistrate was satisfied that the person was mentally ill and that in the interest of health and personal safety of that person he finds it necessary to pass an order, he may authorise the detention of said person as an inpatient 1

in a psychiatric hospital or psychiatric nursing home. So even after getting medical report suggesting the person to be mentally ill person, the Magistrate has to record a satisfaction that in the interest of his health and personal safety of such person the detention of such person in a mental or psychiatric hospital or psychiatric nursing home was necessary. Even after these requirements are met, still there are two proviso. One of the proviso to the section is, "Provided further that if any relative or friend of the mentally ill person enters into a bond, with or without sureties for such amount as the Magistrate may determine, undertaking that such mentally ill person will be properly taken care of and shall be prevented from doing any injury to himself or to others, the Magistrate may, instead of making a reception order, hand him over to the care of such relative or friend." The learned Magistrate has noted in his order dated 16th June, 2008, "Mother of Ms. Asha Bajaj stated that she will take care of her daughter, but Shri Mule, API, submitted that such type of assurance was given by her mother previously also, but Miss Asha and her mother committed breach of those assurance and if Miss Asha is left free then there is possibility of threat to the life of Asha and also to the life of other police officer." There was no record before the Magistrate compelling her not to grant request of the mother of Petitioner No.1, who was present before the Magistrate. At best the Magistrate could have demanded a bond from the mother of petitioner 

No.1. It appears that the Magistrate was performing formalities and the decision was taken even prior to medical report.

With the observations that the Magistrates should treat themselves to be the custodian and protector of the rights of the people and if police fail in their duty the Magistrates should not fail and should ensure that the person is not sent to a mental hospital without strict compliance of the provisions of the Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1353 OF 2008

 MS. ASHA SHAMANDAS BAJAJ, Vs  MRS. MEERAN BORWANKAR )

Coram: 
Bilal Nazki, A.A. Kumbhakoni
JUDGMENT (Per Bilal Nazki, J.) :

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