IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 RPFC.No. 148 of 2007() --------------------------------- MC.714/2005 of THE FAMILY COURT, MALAPPURAM .................... PETITIONER (S): RESPONDENT ---------------------------------------------- KIZHAKEPURAKKAL KALAKKATTU MUSTHAFA, S/O.MUHAMMED,KIZHAKEPURAKKAL HOUSE,VELLIKUNNU P.O, VELLIKUNNU DESOM,MALAPPURAM. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): PETITIONER --------------------------------------------- 1. SOUMYA M.K,S/O.IMBICHALI,KATHRAMAL KOLAKKAD KOLAPPURATHU HOUSE,VAZHIYOOR AMSOM, KARUTHARAMBU DESOM,KARADU P.O,FAROKE COLLEGE VIA, MALAPPURAM DISTRICT. 2. HANNATH SAREENA,(MINOR),REPRESENTED BY HER MOTHER IST RESPONDENT -DO- ADV. SRI.BABU S. NAIR THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON 22/08/2011 PASSED THE FOLLOWING: tss RP(FC) NO.148/2007 APPENDIX PETITIONER'S ANNEXURES A1:- COPY OF THE MEDICAL CERTIFICATE. A1(B):- COPY OF THE MEDICAL CERTIFICATE. A1(C):- COPY OF THE MEDICAL CERTIFICATE. A2:- COPY OF THE PETITION. A3:- COPY OF THE OBJECTION. A4:- COPY OF THE ADDITIONAL OBJECTION. RESPONDENT'S ANNEXURES NIL:- TRUE COPY P.S. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ------------------------------- R.P.(FC).NO.148 OF 2007 ----------------------------------- Dated this the 22nd day of August, 2011 O R D E R Revision petitioner is the husband, who suffered an order passed under Section 125 of the Code of Criminal Procedure directing him to pay maintenance at the rate of Rs.2,500/- to the 1st respondent, his wife, and Rs.1,500/- to the 2nd respondent, minor daughter. 2. The order so passed by the Judge, Family Court, Malappuram is challenged on the ground that no enquiry was conducted on the plea raised by him that he suffered from schizophrenia, an aggravated form of mental illness, which was supported by producing materials as well, with request for appointment of a guardian to defend the proceedings on his behalf. The learned counsel appearing for the revision petitioner/husband relying on Ram Chandra Arya v. Man Singh and another (AIR 1968 SC 954) and Pankajaksha R.P.(FC).No.148/2007 2 Kurup v. Fathima (1998 (1) KLT 668 (FB)), both of which rendered with respect to the proceedings covered by Order XXXII Rule 15 of the Cr.P.C., contended that any proceedings or order passed against a lunatic without appointing a guardian for him will be non est and a nullity. Challenge as aforesaid against the impugned order is resisted by the learned counsel for the respondents pointing out that an application was filed under Sections 329 and 330 of the Cr.P.C. by the husband before the court below for appointment of his father as his guardian to defend the proceedings. But when that application was considered, the revision petitioner present before court had stated that he did not want representation by a guardian as he does not have, then, mental illness. The learned Family Court Judge, being satisfied with the submissions made by the revision petitioner in person, as aforesaid, dismissed his application filed as C.M.P.No.694 of 2006, is the further submission of the counsel. 3. Perusing the records of the case, I find that the submissions made by the learned counsel for the respondents is R.P.(FC).No.148/2007 3 well founded. The application filed by the petitioner as C.M.P.No.694 of 2006 under Sections 329 and 330 of the Cr.P.C. is dismissed in the presence of the husband and his father and also the 1st respondent, his wife. The husband present in the court, it is seen, has submitted that he has no mental illness and he does not want any representation by his father in the proceedings. The learned Family Court Judge has also recorded in the order that the father of the husband, who was present, also admitted that his son can appear and conduct the case all by himself. It was in that backdrop, the application of the petitioner for the appointment of his father as guardian was dismissed. When such be the case, there is no merit in the challenge now raised in the revision that the order passed by the learned Family Court Judge awarding maintenance to his wife and child suffer from infirmity, due to non-appointment of a guardian for the petitioner/husband. 3. The impugned order shows that it was passed in the presence of the parties, the wife and the husband, not on the date the C.M.P.No.694 of 2006 was disposed of, but, on the next R.P.(FC).No.148/2007 4 hearing date. C.M.P.No.694 of 2006 is seen disposed of on 03.08.2006 and the order impugned in the revision awarding maintenance to the wife and child in the presence of the parties as aforesaid was on 08.11.2006. The learned Family Court Judge, recording the presence of the parties, has also stated in the order that the revision petitioner husband has not filed a counter and that he has no counter to be filed. Evidently, the respondent has not raised any objection to the claim canvassed by his wife and children. No dilation over the decisions relied by the counsel is called for in the case, in view of the facts and circumstances as aforesaid. Maintenance awarded under the order to the wife and child by the Family Court Judge is found to be unassailable on the challenge raised. There is no merit in the revision, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.P.(FC).No.148/2007 5