Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941 RP.No.322 OF 2019 IN OP (FC). 536/2018 AGAINST THE JUDGMENT IN OP (FC) 536/2018 OF HIGH COURT OF KERALA REVIEW PETITIONER/RESPONDENT: LEKHA ROY, AGED 36 YEARS W/O.ROY THOMAS, RESIDING AT CHERUVATTOLIL PADINJATTETHIL HOUSE, KOZENCHERRY P.O., MALLAPPUZHASSERY VILLAGE, KOZENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.V.SETHUNATH SRI.V.R.MANORANJAN RESPONDENT/PETITIONER: ROY THOMAS, AGED 45 YEARS, S/O.THOMAS KUTTY, R.R.KOTTAGE, PATTAZHI VILLAGE, PANTHAPLAVU P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN - 691 009. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.P. No.322/2019 in O.P.(FC)536/18 -:2:- C.K. ABDUL REHIM &
T.V. ANILKUMAR, JJ.
----------------------------------------------------- Review Petition No. 322 of 2019 in O.P.(FC) No. 536 of 2018 ------------------------------------------------------- Dated this the 29th day of November, 2019
ORDER
Abdul Rehim, J.
The respondent in O.P.(FC) 536/2018 is seeking review of the judgment dated 27.2.2019. The respondent herein filed O.P.(FC) 536/208 challenging the interim orders passed by the Family Court, Pathanamthitta in I.A. Nos.1058/2017 and
2. The original petition pending before the Family Court was one seeking for dissolution of the marriage existing
between the parties, filed by the husband. One among the grounds raised for dissolution of the marriage was the alleged mental illness of the review petitioner. I.A. No.638/2018 was R.P. No.322/2019 in O.P.(FC)536/18 -:3:-
filed seeking amendment in the original petition on the basis that a guardian need to be appointed on behalf of her. In the proceedings before the Family Court I.A. No.1058/2017 was filed seeking direction for sending the wife for medical examination in order to assess her mental status. The Family Court dismissed I.A.No.1058/2017 finding that husband is not entitled to call for a medical report, because the court itself was convinced on interaction with the wife that she was capable of prosecuting her case by her own. With respect to I.A. No.638/2018 the Family Court found that the amendment sought for is not essential to determine the real question in controversy between the parties. Hence the said IA was also dismissed.
3. This court after considering challenges raised against dismissal of the above said interlocutory applications, disposed of the original petition through the judgment sought to be reviewed herein. The impugned orders of the Family Court were set aside and the interim applications were remitted to the R.P. No.322/2019 in O.P.(FC)536/18 -:4:- Family Court for fresh consideration and disposal, after hearing both sides.
4. This court observed that, if the Family Court became
satisfied from the interactions with the wife or from medical report if any called for, that she can protect her interest in the litigation on her own, no order appointing a guardian is called for. It is found that, if the satisfaction is otherwise, service of a guardian as and when necessary be made to protect the interest of the wife. The court below was directed to enter into a clear finding on the above aspect.
5. The above review petition is filed by pointing out that,
there exist other cases in between the parties, pending before the same Family Court, such as M.C.No.124/2015, O.P. Nos.489/2015 and 483/2015. It is pointed out that, all those cases are put under joint trial along with O.P. No.210/2017. According to the review petitioner, attempt of the respondent/husband is only to protract the disposal of all the cases. It is pointed out that, under Order XXXII Rule 2 of the R.P. No.322/2019 in O.P.(FC)536/18 -:5:-
Code of Civil Procedure, the person who institute the case ought to have filed application seeking leave of the court for appointment of guardian in case the respondent is of unsound mind. It is contended that the said mandatory provision cannot be get over by virtue of the judgment passed by this court. It is pointed out that it is illegal to permit the husband to seek for an amendment to the extent of appointing a guardian to represent the wife, at this stage of the proceedings.
6. Heard Adv. V. Sethunath appearing for the review petitioner and Adv. N.L. Bitto appearing for the respondent.
7. We are of the considered opinion that the delay which will be caused in disposing the connected cases, which are ordered to be tried jointly, cannot be considered as a ground
to review the judgment. A review petition under Order XLVII Rule 1 of CPC cannot be sustained based on such a ground. With respect to other contentions, we take note of the provisions contained in Order XXXII Rule 3 read with Rule 15 therein. The provision is to the extent that, in a case where the R.P. No.322/2019 in O.P.(FC)536/18 -:6:- defendant is a minor, or a person adjudged to be of unsound mind, or found by the court on enquiry to be incapable by reason of any mental infirmity in protecting their interest, the court on being satisfied of the fact of the minority or incapacity,
shall appoint a person to be guardian for such person. In the case at hand, the petitioner before the Family Court(husband) alleges that the respondent/wife is suffering from mental illness. Further allegation is that, she is incapable of protecting her interest on her own, due to the mental infirmity. In such case, the course to be adopted by the court, as provided under Rule 3
read with Rule 15 of Order XXXII, is to make an inquiry in order
to determine whether the person alleged to have the mental infirmity is capable or not in protecting her interest in the proceedings before the said court. Through the judgments sought to be reviewed, this court had only directed such an inquiry to be conducted. We do not think that this court had in any manner allowed the respondent herein to rectify any illegality or defect existed at the time of filing of the original R.P. No.322/2019 in O.P.(FC)536/18 -:7:- petition before the Family Court. Therefore we are not persuaded to accept the contention raised in that respect.
8. Consequently, we are of the opinion that there exists no grounds to review the judgment. Therefore the above review petition fails and the same is accordingly dismissed.
9. However, considering the contentions raised, we are
inclined to direct the Family Court to pass appropriate orders in I.A. Nos.1058/2017 and 638/2018 in O.P. No.210/2017, at the earliest possible, at any rate, within a period of two months from today.
C.K. ABDUL REHIM, JUDGE. T.V. ANILKUMAR, JUDGE. ul/- // True copy // P.S. to Judge. R.P. No.322/2019 in O.P.(FC)536/18 -:8:- APPENDIX PETITIONER'S EXHIBITS: ANNEXURE 1 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HUSBAND IN MC NO.124/2015 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA. ANNEXURE 2 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HUSBAND IN OP NO.489/2015 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA. ANNEXURE 3 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HUSBAND IN OP(GW) COURT, PATHANAMTHITTA.