KURIAN JOSEPH, J. :- What is the jurisdictional obligation of the Court in dealing with a suit or other proceedings by or against persons of unsound mind or persons suffering from any mental infirmity by reason of which they are incapable of protecting their interests. is the question arising for consideration in this case.

2. The appeal is directed against the order dated 16-5-2006 in O. P. No. 847/2000 on the file of the Family Court, Thrissur. Appellant is the petitioner. Appellant and the first respondent got married on 20-10-1984 and there is a child in their wedlock. Appellant submits that he is deaf and dumb, and hence the appeal is filed through his mother. The suit is for setting aside the order in M. C. 231/99. The Family Court framed an issue as to whether the suit for declaration that the order in M. C. 231/99 is null and void, is maintainable.

3. M. C. 231/99 is filed by the respondents wife and child herein for maintenance. In the said case, the appellant herein is not represented by anybody else. The Family Court on 14-12-1999 passed the following order in the said case :

"Counseling done. Parties agreed for maintenance at Rs. 800/- per month to both petitioners from today. They signed an agreement to that effect before the counsellor. Hence as agreed between the parties the respondent is ordered to pay maintenance at the rate of Rs. 400/- per month each to both petitioners from today. 1st petitioner is allowed to receive the amount on behalf of the 2nd petitioner. No costs.”

Being a deaf and dumb person and since he suffers from mental infirmity. it is submitted that he could not have given a valid consent without a next friend. The order passed in a proceedings where such a person was not given the assistance of a next friend is null and void. Without a proper enquiry under Order 32 Rule 15 of the Civil Procedure Code, the Court could not have passed an order for maintenance, it is submitted.

4. The appellant had also filed an application in the suit for an enquiry under Order 32 Rule 15 of Civil Procedure Code. It is seen that the Family Court has not conducted any enquiry in that regard. The Court has observed that in view of the order in M. C. 231/99, unless the said order is set aside or cancelled by a competent Court, the Court is helpless.

5. Inviting reference to the decision of this Court in Kunhamma v. Rosakkutty (1997 (1) KLT 33) : (1997 AIHC 3802) it is submitted that being a suit/petition filed by a deaf and dumb person, the Court should have conducted a preliminary enquiry before proceeding with the trial. It is submitted that a decree against a deaf and dumb person, who is also suffering from mental infirmity is a nullity. in case it is one prosecuted without appointing a next friend. If a decree is null and void, the prayer for a declaration in that regard is sufficient and it is not necessary even to set aside the same. Reference is invited to the Full Bench decision of this Court in Pankajaksha Kurup v. Fathima (1998(1) KLT 668) : (AIR 1998 Ker 153). We also note that in the decision reported in Lakshmi Pillai Parvathi Pillai v. Purushothama Pai (1965 KLT 57), the Division Bench of this Court has taken the view that a fresh suit to set aside such a decree passed against a person suffering from the incapacity referred to above is maintainable. Neither in M.C. 231/99 nor in O.P. 847/2000, the Family Court has conducted an enquiry as to the mental capacity of the appellant herein or as to whether he is capable of protecting his interest when suing or being sued.

6. Order 32 Rule 15 reads 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 whe