IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No.3194 of 2009 (E) -------------------------------- AGAINST THE ORDER IN IA.1810/2008 IN OS.74/2005 of SUB COURT, MANJERI .................... PETITIONER: PETITIONER ------------------------------- ABDUL KAREEM, AGED 57 YEARS, S/O.LATE MAMMED, UMMIYIL HOUSE, MORAYUR P.O., MORAYUR AMSOM, DESOM, ERNAD TALUK. BY ADV. SMT.K.A.SANJEETHA SRI.P.VENUGOPAL (1086/92) RESPONDENTS: RESPONDENTS/PLAINTIFF -DEFENDANTS 1 & 2 -------------------------------------------------------------------------- 1. AMINA, D/O.MUHAMMEDAJI, W/O.ABDULKAREEM, KOTTEKODAN HOUSE, MANGALASSERI, KARUVAMBRAM P.O., KARUVAMBRAN AMSOM, ERNAD TALUK. 2. K.AFSATH, D/O.MUHAMMEDAJI, W/O.C.K.MUHAMMEDAJI, CHAKKALAKUNNAN HOUSE, MUTTIPPALAM, ANAKKAYAM P.O., ERNAD TALUK. 3. K.RASIYA, D/O.MUHAMMEDAJI, W/O.K.P.KOYA, KARAPPOOLA HOUSE, VATTAPPARA, NARUKARA P.O., NARUKARA AMSOM, ERNAD TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3194 of 2009 ------------------------------------------------ Dated this the 30th day of January, 2009 JUDGMENT Petitioner is the husband of Amina the plaintiff in O.S.74/05 on the file of the Sub Court, Manjeri. It is submitted by the counsel for the petitioner that the first respondent/ plaintiff instituted O.S.74/05 aforesaid for partition and separate possession of her share in the scheduled property owned by her jointly with respondents 2 and 3 who are her sisters. The petitioner who is the husband of the plaintiff/first respondent filed I.A.1810/08 in the said suit to appoint him as guardian for his wife/the plaintiff for the proper conduct of the suit, as according to him, the plaintiff is a mentally retarded person and is not in a position to protect her interest in the legal proceedings. The court below conducted an inquisition and found that the W. P. C. No.3194 of 2009 -2- plaintiff is not having mental incapacity as alleged and that she is giving rational answers to the questions put by the court. Consequently, vide Ext.P4 order the petition filed by the petitioner/husband as I.A.1810/08 was dismissed. It is assailing the said order that this Writ Petition is filed. 2. It is vehemently contended before me by the counsel for the petitioner that the disability certificate produced by the petitioner in respect of the plaintiff Amina who is the wife of the petitioner has not been considered by the court below; that the certificate would disclose that the first respondent/plaintiff is having 50% permanent moderate disability due to mental retardation when examined on 28/10/05. It is strange that in the certificate after the words “due to mental retardation” the following is written:- “12 50 - 55 on 5 p.m.” W. P. C. No.3194 of 2009 -3- 3. The counsel for the petitioner was asked as to what is meant by those entries and the counsel is unable to offer any explanation. Any way, the certificate shows that the alleged patient was examined only on one day and that was on 28/10/05. There is no mention as to for what period she was observed even on that day. If at all the Doctors who constituted the Medical Board felt that the plaintiff was having any mental retardation it was up to them to admit the patient in the hospital and keep her under observation for the required number of days. Further, it is seen from the statement of the plaintiff recorded by the court at the time of inquisition that she has stated that she is not residing with her husband. It was put to the counsel for the petitioner and she also submits that the petitioner's wife is not residing with him. Hence, by no reason, is he W. P. C. No.3194 of 2009 -4- a person who is fit to be appointed as guardian of the person of the plaintiff in O.S.74/05 on the file of the Sub Court, Manjeri as rightly found by the court below. His interest can be presumed to be adverse to that of his wife the plaintiff as they are living separated and he is a person unfit also to be appointed as guardian in any event. This Writ Petition is hence, devoid of merit and deserves to be dismissed. 4. In the result, I dismiss this Writ Petition. Communicate a copy of this judgment to the court below forthwith. K.P.BALACHANDRAN, JUDGE kns/-