SHANTILAL CHHAGANLAL TALATI Vs. ASHOKBHAI CHIMANLAL DESAI

JUDGEMENT

(1.) A lunatic woman, who is otherwise entitled to claim maintenance under Section 125 of Criminal Procedure Code, and whose father, as her guardian and next friend has filed application for maintenance, is asked by the learned Magistrate to wait till she regains sanity and becomes capable to understand the proceedings. The lunatic, (of course during the period of lucid intervals) in turn asks, if this is the law, is it not tentamount to saying that the maintenance can be claimed in next birth, if there be any ? The lunatic has to be assured, and is required to be told law is not that unreasonable and her application, filed through a next friend or a guardian is maintainable.

(2.) THE petitioner herein is the father of the Urvashiben, a lunatic, on whose behalf the petitioner as next friend and guardian of the lunatic, filed an application under the provisions of Section 125 of the Criminal Procedure Code in the Court of Judicial Magistrate First Class, Halol and claimed maintenance from the opponent No. 1 husband of said Urvashiben. The learned Magistrate, as per his order, dated February 18, 1985 held that the application filed on behalf of the lunatic by her father as next friend and guardian, was not maintainable. The learned Magistrate felt that the only course left open to him was to stay further proceedings of the application till the applicant herself get cured and regained the soundness of mind. Against this order the petitioner has filed this application.

(3.) THE learned Magistrate inter alia held that under the provisions of the Indian Lunacy Act, 1912, the District Court had power to appoint a guardian of a lunatic and, therefore, it would not be possible for him to appoint the petitioner as a guardian of lunatic Urvashiben and proceed further with the case. The learned Magistrate also observed that Urvashiben herself is a lunatic and would not be in a position to give deposition and if the deposition of her guardian and next friend were recorded, then there was possibility of an embellishment and the facts may he distorted and, therefore, it would be difficult to find out the truth. Following the principles laid down in the case of Appichi Goundan v. Kuthujamal, reported in AIR 1925 Madras 440, the learned Magistrate held that he had no power to appoint guardian ad litem in the proceedings under Section 125 of the Code and there was no other course left open to him but to stay the proceedings of the application till the lunatic regained the soundness of mind.