IMPORTANT POINTS :
• A medical report, if called for, as to the mental status of the respondent will not go to prejudice her, since the court is not supposed in an enquiry under Order XXXII Rule 15 to decide the disputed issue of mental illness, which may be a relevant issue in the main proceeding.
• The limited enquiry in Order XXXII Rule 15 is as to whether the party is capable enough to take care of his interest in the litigation and nothing more.

T.V. ANILKUMAR, J.

1. The petitioner challenges two orders passed by the Family Court, Pathanamthitta on 26.7.2018, dismissing I.A.Nos.1058 of 2017 and 638 of 2018 in O.P.No.210/2017 filed by him for a decree of dissolution of his marriage with his wife, the respondent herein.

2. He sought divorce on the ground of cruelty as well as mental disorderliness of the respondent by invoking S.10(1)(iii) and S.10(1)(x) of the Divorce Act, 1869. He, however, failed to seek appointment of a guardian on behalf of the respondent, at the commencement of the proceeding. When this omission came to his notice, he filed I.A.No.638/2018 for amending the Original Petition and appointing the mother of the respondent as her next friend in the proceeding. This was heavily opposed by her on the ground that she was not mentally ill and had never suffered from any sort of incurable mental disorderliness.

3. The petitioner also sought to subject the respondent to medical examination for assessing her mental status. I.A.No.1058/2017 filed by him in this respect was also stiffly opposed on the ground that there were no proper allegations in the pleadings, imputing mental illness on her. The court below through the impugned orders held that, the petitioner is not entitled to call for a medical report, since the court itself, during the course of interaction with the respondent, was satisfied that her faculty of understanding, feeling, laughing etc., were not impaired and that the appointment of a next friend to defend her interests in the proceeding, was not called for.

4. We heard counsel representing both sides.

5. What the appellant seeks through I.A.No.638/2018 is to amend the Original Petition incorporating the name of her mother as next friend of the respondent. This plea for amendment appears to be legally not sustainable for the main reason that law sanctions engagement of next friend only when proceedings are initiated in the name of the author of the proceeding and he or she happens to be a minor or mentally ill person. When such a person becomes a defender of a proceeding in a court of law, Order XXXII Rule 3 of the Code of Civil Procedure (hereinafter referred to as ‘the C.P.C.’) applies, providing for appointment of a guardian for him. In fact, Order XXXII does not oblige a suitor or petitioning party to apply for an order appointing a next friend for him/her whereas an order appointing guardian is necessary when he or she requires to be represented in the proceeding by a guardian. A next friend is different from a guardian. Next friend in a legal proceeding is a person who undertakes the legal cause and acts for the legal benefit of someone not legally competent to act for himself or herself. He does not stand confined to any particular relative of the suitor. While a guardian is competent under law to act as a next friend for a person, the converse may not always be true. This distinction made by law was not taken notice by the court below.

6. It is evident from the order passed in I.A.No.1058/2017 that, the respondent was capable of understanding things before her, as if her mental faculties were unimpaired. But the Family Court failed to enter a definite finding as to whether she was capable of defending the case or protecting her interests in the proceeding, as required by Rule 15 of Order XXXII of the C.P.C. The law requires that there shall be a definite finding as to the capacity of the party for whom the guardian is proposed, to take care of his interests in the proceeding and to defend the case. The Family Court by failing to enter a definite finding as to the capacity of the respondent to defend the case by herself, committed a jurisdictional error and consequently on that solitary ground itself the order requires to be interfered with.

7. Interaction of the court with the person for whom appointment of guardian is sought, is by all means an effective method to test the capacity of the person who is alleged to be mentally infirm