IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 RPFC.No. 199 of 2011 ------------------------------ [THE ORDER DATED 13/10/2010 IN M.C.NO.190/2010 OF THE FAMILY COURT KOZHIKODE] .................... REVISION PETITIONERS/PETITIONERS IN M.C: ------------------------------------------------------------------- 1. P.K.FARIDA, AGED 29 YEARS, D/O.IBRAHIM HAJI, POTHUKUTTIYIL HOUSE, P.O.ORKATTIRI, ERAMALA AMSOM, ORKATTERI DESOM, VATAKARA TALUK. 2. P.K.FATHIMA, AGED 9 YEARS, (D.O.B. 17-03-2003), D/O.P.K.FARIDA, MINOR, REPRESENTED BY MOTHER , 1ST APPELLANT. BY ADVS. SMT.LATHA PRABHAKARAN, SRI.K.M.JAMALUDHEEN. RESPONDENT/RESPONDENT IN M.C: ----------------------------------------------------- ASARINTAVIDA FAIZAL, AGED 36 YEARS, S/O.ABDULLA, P.O.CHORODE, NEAR MUNDASSERI KSHETRAM, MUTTUNGAL AMSOM DESOM, VATAKARA TALUK. BY ADV. SRI.T.G.RAJENDRAN. THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. S.S.SATHEESACHANDRAN, J -------------------------------------- R.P(F.C) No.199 OF 2011 ----------------------------------------- Dated this the 14th day of October 2011 ORDER Revision is by the wife, whose petition claiming maintenance from her husband was dismissed for default by the learned Judge, Family Court, Kozhikode. Claim for maintenance was raised under Section 125 of the Code of Criminal Procedure, for short the 'Code'. 2. Notice issued to the respondent not being responded to, under orders of the Family Court, it is stated, publication was effected in a news paper. Pursuant thereto, the respondent through his father entered appearance and contended that he suffered from mental illness and, thus, incapable of taking care of himself. The application moved by the father to appoint him as guardian of the respondent was turned down by the Family Court. However, on the same day, it is submitted, the petition for maintenance moved by the wife was also dismissed for default holding that steps were not taken even after sufficient time given. Propriety, legality and correctness of that order is impeached in this revision. 3. The learned counsel for the revision petitioner/wife would submit that with the claim for maintenance the wife had moved two other cases also, one for realisation of money towards recovery of gold ornaments and the other for dissolution of the marriage. Both such R.P(F.C) No.199 OF 2011 - 2 - cases too, according to the counsel, had been dismissed on the same day for the reason on which the claim for maintenance was turned down. 4. Notice in the revision ordered to the respondent. It is seen, his father has entered appearance through a counsel. In the vakalath filed on behalf of the father, the respondent is styled as insane. However, no permission from the court has been sought when a vakalath is filed by the father of the respondent to represent the respondent on any ground whatsoever, leave alone the question whether he suffered from any mental illness or not. 5. Though there is no effective appearance for the respondent, having regard to the fact that his father has filed a vakalath, as indicated above I heard that counsel also. At the outset it has to be pointed out since the dismissal of the petition was on the ground of default in taking steps, presupposing that it was an order without notice to the respondent, the respondent need not be heard in this revision. Leaving that aspect also, whether dismissal of the order passed by the Judge, Family Court in the facts and circumstances pointed out by the learned counsel for the petitioner is sustainable under law, is the limited question arising for consideration. There was publication of notice in a daily when personal service was found impracticable as against the respondent in the proceeding. In response to such publication, it is R.P(F.C) No.199 OF 2011 - 3 - evident, the father of the respondent has entered appearance and resisted the claim contending that the respondent is suffering from mental illness. The first and foremost thing which should have been done by the Judge, Family Court, was to pass an order directing the appearance/production of the respondent who is stated to be insane, to satisfy himself as to his mental fitness to proceed further in the matter. Needless to state the proceedings under Section 125 of the Code, which is intended to avoid vagrancy and to provide succor to destitutes, primarily is civil in nature, and, the power to adjudge such claims having regard to the expediency to be taken in the matter, the criminal courts are conferred with jurisdiction. Still, in such proceedings where question or dispute relating to mental fitness of one or the other party emerge as an issue, the inquiry thereof, as enjoined by law, has to be followed to enter a finding on such disputed question. Order 32 of the Code of Civil Procedure, more particularly Rule 15 thereunder, postulates what should be the nature of inquiry in a case where one or the other party is imputed to be suffering from any mental illness. Inevitably in such an inquiry before any further steps is taken, the Magistrate/Judge has to pass an order directing the presence/production of the person who is stated to be mentally ill, to determine whether any inquiry over the question canvassed for is required. If the Magistrate is satisfied on questioning the respondent on his appearance/production R.P(F.C) No.199 OF 2011 - 4 - that he is mentally fit to prosecute or defend the proceedings, no further detailed inquiry thereof is warranted. Even the inquiry under Section 125 of the Code is only a summary as the claim for maintenance canvassed by a wife require to be adjudicated with expediency. The impugned order passed by the learned Judge, at any rate, is clearly unsustainable under law. 6. Setting aside the order, the Judge, Family Court is directed to take back the file and proceed with the inquiry thereunder and dispose the matter taking note of the observations made above and in accordance with law. Since the respondent has entered appearance through his father, no further notice to the respondent is necessary. If on the hearing date the respondent fails to appear, the Magistrate has to proceed further with the matter. On the other hand, if the respondent moves any petition for determination of his mental illness, then, necessarily the Magistrate has to conduct an inquiry as indicated. Parties are directed to appear before the Judge, Family Court on 14-11-2011. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge