IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 OP (FC).No. 1057 of 2010(R) --------------------------- AGAINST THE ORDER DATED / / IN IA 2174/2010 IN OP.865/2008 of FAMILY COURT, ALAPPUZHA .................... PETITIONER ------------------------------ BENNICHAN @ CHACKO, S/O.ANTONY, NEDUMCHIRAKKARI, KOKKAMANGALAM, CHERTHALA BY ADV. SRI.JOBY CYRIAC RESPONDENT(S): --------------- 1. K.X.MARY @ USHA,D/O.XAVIOUR, KONNACHAMPARAMBIL HOUSE, KADAKKARAPPALLY VILLAGE, KADAKKARAPPALLY P.O.,CHERTHALA 2. ANTONY, KONNACHAMPARAMBIL HOUSE, KADAKKARAPPALLY VILLAGE KADAKKARAPPALLY P.O.,CHERTHALA THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- O.P.(FC) No.1057 of 2010-R ------------------------------------------------- Dated this the 10th day of December, 2010 JUDGMENT Basant,J. The contestants are spouses. The 1st respondent i.e., the wife of the petitioner has filed a petition before the Family Court, Alappuzha, claiming divorce on the alleged ground of mental unsoundness of the petitioner. There was a prayer that a guardian may be appointed. The court below by the impugned order appointed the petitioner's father as his guardian. The court below did, of course, look into certain materials that were available. The court below did not enter a positive finding that the petitioner is unable to protect his interests in the litigation. Notwithstanding that, the petitioner's father was appointed as his guardian - it would appear, by way of abundant caution. 2. The learned counsel for the petitioner submits that the O.P.(FC) No.1057 of 2010 -: 2 :- procedure adopted by the court below is not correct. The petitioner does not need a guardian. His father need not have been appointed as his guardian. The petitioner is himself conducting his case and the petitioner's apprehension is that the tentative finding taken under the impugned Ext.P5 order may weigh with the court when it ultimately disposes of O.P.(Divorce) No.865/08. The learned counsel admits that there is no conflict of interests between the petitioner and his father. He has no grievance that the appointment of the petitioner's father as guardian would in any way obstruct or impede the proper conduct of the case by the petitioner. 3. Ideally we would have expected the court below to enter a positive finding about the need for appointment of guardian before such a step is taken. But the short question is whether the extraordinary constitutional jurisdiction of superintendence under Art.227 of the Constitution can or need be invoked. We are informed that the pleadings are complete and the matter stands posted for evidence. The petitioner is willing to adduce evidence. His father will not in any way stand in the way of his adducing whatever evidence he wants to adduce. The learned counsel submits that the petitioner has an apprehension that the court below may not permit the petitioner to enter the box and tender evidence. An observation that the petitioner must be permitted to adduce all such evidence as O.P.(FC) No.1057 of 2010 -: 3 :- requested by him jointly with his father would serve the interests of the petitioner now, it is submitted. 4. Though not fully satisfied that the ideal course has been followed by the court below, considering the stage of the proceedings and the nature and consequences of the order impugned, we are not persuaded to invoke our jurisdiction under Art.227 of the Constitution now. We record the submission of the learned counsel for the petitioner that the petitioner will be satisfied if it is ensured that he is permitted to enter the witness stand and tender evidence as required and requested by his father also. 5. We are satisfied that this O.P.(FC) can now be dismissed with the specific observation that the court below must permit the petitioner to adduce whatever evidence he wants to adduce, with the consent of his father which the petitioner is sure of. 6. Hand over a copy of this judgment to the learned counsel for the petitioner forthwith. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge