Judicial Inquiry resolving Guardianship matters to Employ Services of Experts

Pulikkal Kunhamma vs. Pulikkal PJ Rosakkutty

Filed under: Order 32 and Rule 15, Civil Procedure Code (5 of 1908)
Appellant: Pulikkal Kunhamma
Respondent: Pulikkal PJ Rosakkutty
Citation: 1997 AIHC 3802
Court: In the High Court of Kerala
Judge: KA Mohamed Shafi

Facts

Pulikkal Kunhamma filed a civil case in the Court of the Munsif in Nadapuram on behalf of Pulikkal Thomas, a ‘deaf, dumb’ and mentally retarded person. This case was filed in order to stop Rosakkutty from cutting valuable trees from Thomas’s property. While this case was pending in the Court, Thomas filed an appeal in the lower Court for the removal of his ‘next friend’ (guardian). The Lower Court after conducting an enquiry allowed the petition and removed the next friend. Pulikkal Kunhamma challenged the order in this revision petition.

Kunhamma’s main contention was that Thomas was a deaf - mute person who was also mentally retarded and was therefore incapable of looking after his affairs. She also produced a certificate from a doctor who had been treating Thomas for his mental infirmity.According to Kunhamma the Lower Court did not conduct a proper enquiry according to the relevant provisions of the Civil Procedure Code (CPC). She further submitted that the Lower Court had questioned Thomas in the open Court and on that basis had reached the conclusion that Thomas was only dumb and mute and was capable of looking after his affairs.

Observations of the Court

According to the Court the main question to be considered was whether the enquiry conducted by the Lower Court was proper and sufficient as contemplated under the CPC. The Court took into account the fact that even though Thomas had given answers to all the questions put to him by the Judge; it was nowhere mentioned in the order that the Judge had knowledge or training to understand the signs and gestures made by deaf and mute persons.

The Court also drew attention to the fact that without any assistance from a trained person the gestures and signs made by such a person could not be inferred. Therefore, from an enquiry of this nature it could not be concluded that Thomas had a correct and accurate understanding of the questions addressed to him.

In light of the circumstances of the case, the Court held that the enquiry conducted by the Lower Court was not a satisfactory judicial enquiry regarding Thomas’s mental condition, especially considering the fact that no services of any expert had been used during the enquiry.

Accordingly, the revision petition was allowed and the order given by the Lower Court was set aside. The Court directed the Lower Court to conduct a proper judicial enquiry in order to assess whether Thomas was mentally impaired and incapable of looking after his affairs.

Sections Referred: