An application for maintenance under Section 125 of the Criminal Procedure Code can be filed by a next friend or guardian of a lunatic.

JUDGMENT :

A.P. Ravani, J.

A lunatic woman, who is otherwise entitled to claim maintenance under Section 125 of Criminal Procedure Code, and whose father, as her guardian and next friend has filed application for maintenance, is asked by the learned Magistrate to wait till she regains sanity and becomes capable to understand the proceedings. The lunatic, (of course during the period of lucid intervals) in turn asks, if this is the law, is it not tantamount to saying that the maintenance can be claimed in next birth, if there be any ? The lunatic has to be assured, and is required to be told law is not that unreasonable and her application, filed through a next friend or a guardian is maintainable.

2. The petitioner herein is the father of the Urvashiben, a lunatic, on whose behalf the petitioner as next friend and guardian of the lunatic, filed an application under the provisions of Section 125 of the Criminal Procedure Code in the Court of Judicial Magistrate First Class, Halol and claimed maintenance from the opponent No. 1 husband of said Urvashiben. The learned Magistrate, as per his order, dated February 18, 1985 held that the application filed on behalf of the lunatic by her father as next friend and guardian, was not maintainable. The learned Magistrate felt that the only course left open to him was to stay further proceedings of the application till the applicant herself get cured and regained the soundness of mind. Against this order the petitioner has filed this application.

3. The learned Magistrate inter alia held that under the provisions of the Indian Lunacy Act, 1912, the District Court had power to appoint a guardian of a lunatic and, therefore, it would not be possible for him to appoint the petitioner as a guardian of lunatic Urvashiben and proceed further with the case. The learned Magistrate also observed that Urvashiben herself is a lunatic and would not be in a position to give deposition and if the deposition of her guardian and next friend were recorded, then there was possibility of an embellishment and the facts may he distorted and, therefore, it would be difficult to find out the truth. Following the principles laid down in the case of Appichi Goundan v. Kuthujamal, reported in AIR 1925 Madras 440, the learned Magistrate held that he had no power to appoint guardian ad litem in the proceedings under Section 125 of the Code and there was no other course left open to him but to stay the proceedings of the application till the lunatic regained the soundness of mind.

4. In the case before the Madras High Court an application was filed by the wife against her husband who was lunatic. In that case the Madras High Court observed that the provisions of Section 464 of the Criminal 'Procedure Code, 1898 (corresponding to Section 328 of the Criminal Procedure Code, 1973) should have been followed by the trial Court and said :

"That is, if it finds that the petitioner is insane and incapable of understanding question put to him and giving rational answers, it must postpone further proceedings until it is satisfied that the petitioner is capable of so understanding the proceedings."

Then it is further observed :

"It is true that to postpone further proceedings, indefinitely postpone also the wife's prospect of relief under Section 488 but this seems an inevitable result of the omission of the legislature to legislate. She is not without remedy as she can use for maintenance in the Civil Court."

5. From what is stated here-in-above it should be clear that the question which arose before the Madras High Court was not similar to that one which has arisen in these proceedings. In that case the petitioner before High Court was original opponent-husband, and he was lunatic. Therefore, factually the case can be distinguished. But the learned Counsel for the opponent-husband has relied upon the observations of the Madras High Court to the effect that the Magistrate had no power under the Criminal Procedure Code to appoint a gu