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TELANGANA HIGH COURT
K. Sujana, J.
Anuraag Agrawal – Petitioner
versus
Puruhutra Agarwal and Anr. – Respondents
Civil Revision Petition Nos.2890 and
2766 of 2022
Decided on 10.12.2024
Civil Procedure Code, 1908 –Order XXXII Rule 2 read with Rule 15 – Revisional Jurisdiction – Family Matters – Appointment of Guardian – Competency of Person – Where one party suffers from Bipolar disease – Duty of Court to conduct proper enquiry – Legality of next friend appointed as Guardian – Whether valid – Coming to the present case, the next friend is appointed without conducting any enquiry. Appointment of next friend is not in dispute, whereas, Court has to examine the party on whose behalf next friend is appointed – On facts, the trial Court did not conduct any inquiry to determine whether petitioner is of unsound mind before declaring him so and permitted his father to represent on his behalf and did not follow the provisions of Order XXXII Rule 15 of C.P.C. The trial Court also did not send him for examination by the medical officer. As such, the orders impugned are not sustainable and the same are liable to be set aside.
Held: In matters involving persons of unsound mind, the Court must exercise utmost caution and diligence to ensure that the rights of such individuals are protected. Order XXXII, Rule 15 of C.P.C places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rules 1 to 14 – When a party to a suit alleges that the opposing party is of unsound mind, the Court must conduct a judicial inquiry to determine whether the alleged person is indeed incapable of protecting his interests in the suit. This inquiry should consist of examining witnesses, the alleged lunatic, and seeking medical expert opinion. The Court’s inquiry should not be limited to determining whether the person is of unsound mind but also extend to assessing the extent of their mental infirmity. Mental infirmity may arise from physical defects that render the person incapable of communicating their wishes or thoughts. However, the opinion of a medical expert is also relevant, it is not conclusive. The Court must consider all evidence presented, including the expert’s opinion, to arrive at a decision. The Court may compel the attendance of the alleged lunatic before it and direct them to submit to a medical examination.
Failure to conduct a judicial inquiry and adhere to the prescribed procedure may result in the person being improperly declared a lunatic. In such cases, the alleged lunatic may treat any decree passed against them as an ex parte decree and seek to have it set aside under Order IX, Rule 13 of C.P.C. The Court must exercise extreme caution when dealing with cases involving persons of unsound mind. A thorough judicial inquiry, adherence to the prescribed procedure, and consideration of all relevant evidence are essential to ensure that the rights of such individuals are protected.
Court must conduct an inquiry to determine whether a person is of unsound mind before declaring them so and permitting a guardian to come on record. This is in accordance with Order XXXII, Rule 15 of C.P.C. The inquiry should include the examination of witnesses produced by either party, as well as the examination of the alleged person of unsound mind by the judge, either in open court or chambers. As such, decision to appoint the petitioner as guardian and next friend without conducting a proper inquiry was set aside and the matter is remanded to the Court below to conduct a fresh inquiry in accordance with the provisions of Order XXXII, Rule 15 of C.P.C. [Paras 10 to 19].
ORDER (COMMON)
C.R.P.No.2890 of 2022 is filed challenging the order dated 15.10.2022 passed in I.A.No.245 of 2022 in O.P.No.1142 of 2019 by the Judge, I-Additional Family Court, Hyderabad.
2. C.R.P.No.2766 of 2022 is filed challenging the order dated 15.10.2022 passed in I.A.No.247 of 2022 in O.P.No.1164 of 2021 by the Judge, I-Additional Family Court, Hyderabad.
3. O.P.No.1142 of 2019 is filed by the petitioner herein seeking declaration, mandatory injunction and perpetual injunction against the 1st respondent herein. I.A.No.245 of 2022 in O.P.No.1142 of 2019 is filed by the 1st respondent herein who is the petitioner in the said I.A., under Order XXXII Rule 3 of Code of Civil Procedure to take off the petition with cost to be paid by the pleader in O.P.No.1142 of 2019 as the suit is instituted on behalf of an insane without appointment of next friend.
4. I.A.No.247 of 2022 in O.P.No.1164 of 2021 is also filed by the 1st respondent herein who is the petitioner in I.A.No.245 of 2022, under Order XXXII Rule 3 of Code of Civil Procedure to pass an order to appoint the father of respondent therein as guardian to him. O.P.No.1164 of 2021 is filed by the 1st respondent herein seeking divorce on the ground of cruelty and mental insanity of the respondent therein. Both the orders are challenged by the petitioner-husband stating that the trial Court failed to see that the petition filed under Order XXXII Rule 2 r/w.Rule 15 of C.P.C, is neither maintainable in law nor on facts. The same is applicable only for minor and Rule 15 of C.P.C, specifically states that incapability of a person can be declared by the Court only after conducting enquiry and the order of trial Court suffers from irregularity as there is absolutely no enquiry conducted by the trial Court regarding mental infirmity of the petitioner and there is no application of mind in the said order. The trial Court without looking into the nature of document titled as acknowledgement has wrongly construed the same to be a certificate and as such proceeded to pass the impugned order and there are no reasons stated in the counter affidavit in I.A.No.245 of 2022 that no legal guardian need to be appointed to the petitioner as he is not declared as disabled person by any competent authority and the trial Court has failed to either refer the petitioner to a registered medical practitioner for psychological analysis or even satisfy itself based on any medical report or evidence and mistakenly taken the acknowledge-ment copy of disability Certificate issued by the Department of Empowerment of persons with disabilities, Ministry of Social Justice and Empowerment, Government of India as certificate issued by the authority. Even if, petitioner himself admits that he is suffering with Bipolar disorder, the trial Court is bound to enquire before coming to the conclusion as per law, contemplated under order XXXII Rule 15 of C.P.C. The order of trial Court is illegal as there is no enquiry conducted before coming to conclusion that petitioner is of unsound mind and the order is liable to be set aside.
5. I.A.No.245 of 2022 is filed by the wife to take off the petition with costs to be paid by the pleader in the O.P.No.1142 of 2019 as the suit is instituted on behalf of insane without next friend. In the said I.A., it is averred that O.P.No.1142 of 2019 is filed seeking declaration, mandatory injunction and perpetual injunction against the respondent therein. The respondent therein filed counter denying the averments and filed application and certificate issued by the Department of Empowerment of Persons with Disabilities, declaring the respondent therein as a person with mental illness since the year 2000 and appointed his father Shivcharan J. Agarwal as his guardian. The Family Court, Chaibasa in matrimonial suit Number 4 of 2014, observed as follows:
“Thus, it is apparent that petitioner Anurag Agarwal is suffering from Psychopathic disorder i.e., bipolar ailment and the respondent, i.e.
(1) Unsound mind – Matters involving persons of unsound mind, the Court must exercise utmost caution and diligence to ensure that the rights of such individuals are protected. Order XXXII, Rule 15 of....
The court established that an inquiry is mandatory under Order 32 Rule 15 CPC to determine if a party is incapable of protecting their interests due to mental infirmity before appointing a next frien....
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....
Prime concern of court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not.
The court established that under the Mental Health Act, 1987, a judicial inquiry into the mental capacity of an individual is essential when there are allegations of mental incapacity affecting legal....
The court established that individuals deemed mentally unfit cannot be tried, emphasizing the need for appropriate medical evaluation and treatment before any legal proceedings.
The court upheld the trial court's decision, finding no evidence of mental infirmity in the plaintiff, thus dismissing the writ petition.
The court can conduct an inquiry into the unsoundness of mind of a party to a suit before or during the pendency of the suit, as per Order 32, Rule 15 CPC.
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