A judicial inquiry is mandatory to determine unsoundness of mind before appointing a guardian, distinguishing mental illness from legal incapacity.

COMMON ORDER:

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 1 st respondent herein. I.A.No.245 of 2022 in O.P.No.1142 of 2019 is filed by the 1 st 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 1 st 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 1 st 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 acknowledgement 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.,