Presiding Judges of the Courts are expected to assume the role of a parent in order to protect the interest of the persons, who are legally or otherwise unable to act or defend on their own behalf in the litigation held the Punjab and Haryana High Court.
A Single Bench of Justice Anil Kshetarpal passed this order while hearing a Civil Revision filed by Sarjeet Kaur.
The Court observed that whenever a Court notices a party to the litigation is unable to properly prosecute or defend his own case because of legal disability or poverty or illiteracy, such Court is expected to assume the role of a parent to do complete justice.
In this Petition, the petitioner claims that she divorced Jaswant Singh on July 12, 2013 by way of mutual consent under Section 13-B of the Hindu Marriage Act, 1955 and then got re-married on July 24, 2013 to Raghbir Singh, in a Gurudwara at Sangrur in the State of Punjab i.e. within a period of 12 days of the divorce.
One Sarjeet Kaur, married to Jaswant Singh for 22 years, was stated to have staged a divorce in order to marry her husband’s brother, Raghbir Singh, a mentally retarded man, solely to usurp his property.
As per the facts recorded by the Court, Sarjeet filed a Petition under Section 8 of the Hindu Minority and Guardianship Act, 1956 as the next friend of her new husband Raghbir and obtained permission to sell his entire agricultural land.
The Court granted permission to sell the entire land subject to the condition that the sale would be on the market rate prevailing in the locality and the amount so realized, would be deposited in the account of Raghbir Singh as a fixed deposit and the same shall not be withdrawn without the permission of the Court.
The respondents, namely Harbhajan Singh, Surat Singh and Raghbir Singh, the brothers, filed a suit for declaration with a consequential relief of permanent injunction against Sarjeet Kaur and Jaswant Singh. It has been pleaded that the proceedings for getting permission of the court to sell the agricultural land is an act of fraud on the court and the Court which granted permission had no jurisdiction. It has been pleaded that Jaswant Singh had stage-managed the divorce.
The trial Court did not grant the relief of temporary injunction, however, the First Appellate Court reversed the order and granted the relief of temporary injunction against alienation of the suit land and also passed an order restraining the defendants from interfering in the possession of the plaintiffs. That is how this revision petition has been filed.
The first contention of the Petitioner was with respect to the maintainability of the declaratory suit on the ground that an application for setting aside the ex parte order passed in the petition under Section 8 of the 1956 Act was maintainable.
The Court held that proceedings under Section 8 of the 1956 Act were itself not maintainable because the aforesaid proceedings are maintainable only on behalf of a minor and not with respect to a person of unsound mind.
It further observed that the suit seeking declaration was filed claiming that the proceedings under Section 8 of the 1956 Act were the result of fraud. In such a situation, the Court is entitled to set aside such an order/judgment in any proceedings including any collateral proceedings.
The second contention of the Petitioner was that she got married with Raghbir in order to look after his person and property.
The Court found the case set up by the Petitioner to be “strange” and “unpalatable” inasmuch as the Petitioner claimed that she got divorce from Raghbir’s brother by mutual consent after 22 years of marriage, when their children had also got married, as she could not continue to live with Jaswant Singh. However, within a period of 12 days, on the request of Raghbir’s other two brothers, she married Raghbir.
The Petitioner contended that nothing was placed on record to describe the extent of Raghbir’s mental disorder.
The Court held that, it would be noted here that the plaintiffs have produced on record a certificate dated August 12, 2009 issued by the office of the Chief Medical Officer, showing that respondents is mentally retarded to the extent of 75% and his intelligence quotient level is clinically below 50. Still further, the Petitioner, while filing the written statement in the suit, has herself admitted that respondents is mentally retarded to the extent of 75%.
It is noted here that the extent of mental disorder would be the subject matter of the evidence and at this stage, sufficient material is available to form an opinion that respondents is unable to protect his interest, the Court said.
The Petitioner said that sale of the suit land is necessary to utilize the same for taking care of Raghbir Singh.
The Petitioner has not produced any material to prove that Raghbir Singh is not being looked after by his brothers and nephews. Raghbir Singh is stated to be aged about 55 years on the date of filing of the suit. There is no material to show that Raghbir Singh was not taken care of by his relatives in all these years, the Court observed.
The Court stated that, in any case, if the petitioner apprehends that respondents is not being looked after properly, she shall be at liberty to file an application before the trial court, which shall be required to be decided by the court by putting the remaining plaintiffs to terms.
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“Keeping in view the aforesaid facts, there is no scope for interference in the detailed order passed by the first Appellate Court. However, at the cost of repetition, it is significant to note that the observations made by the First Appellate Court as well as by the Court shall not be treated as an expression on the merits of case and the Court, while deciding the suit, will independently appreciate the pleadings and the evidence led”, the order reads.