ALKA Vs. AKASH

JUDGEMENT

(1.) Being aggrieved by the rejection of an application preferred under Order 32 of the Code of Civil Procedure on behalf of the wife Smt. Alka Jain against her husband Akash Jain, the appellant-wife has preferred the present First Appeal by impugning the legality and correctness of the order passed by the Principal Family Court, Gwalior, on date 4-1-2010, in Case No. 180-A/2009/HMA, whereby the Court has refused to hold preliminary inquiry for ascertaining the fact of the husband being deaf and dumb in terms of Order 32 of the Code of Civil Procedure.

(2.) The facts of the case demonstrate that appellant Smt. Alka Jain and her husband Akash Jain got married on date 12-12-2006 and they were blessed with a son, out of the wedlock, when later on some dispute arose between the couple, which compelled the wife to initiate proceedings for the restitution of conjugal rights, by filing an application under section 9 of the Hindu Marriage Act on date 14-8-2008. The husband quickly responded to the legal course adopted by the wife, as he also approached the Family Court with yet another application/suit under section 13 of the Hindu Marriage Act for securing divorce/judicial separation, by approaching the Family Court on date 17-10-2008.

(3.) The present First Appeal relates to and arise out of the proceedings initiated on behalf of the husband Akash Jain, where the application preferred under section 13 of the Hindu Marriage Act was submitted, not by the husband himself, but through his father Shri K. K. Jain, as his "Next Friend", on account of suffering from physical deformity of being a deaf and dumb person, where the description of the next friend/legal guardian was made in the Cause Title of the Application and no separate application was filed on behalf of the husband for taking permission of the Family Court for securing appointment of a guardian/next friend, in view of the physical disability. The description regarding Age of the husband and wife, given in the cause title of the application (preferred under section 13 of the Hindu Marriage Act) demonstrate that the husband is aged 33 years and the wife is aged 26 years, which means that the husband was 'Major' at the time when the application was filed on his behalf under section 13 of the Act and as such the provisions applicable in relation to a 'Minor' would certainly not apply to the present controversy, where after Rule 15 of Order 32 of Civil Procedure Code alone would become applicable, where the description of an inquiry about 'unsound mind' find mention, without there being any explanation or extension of the definition of other disablement about other physical deformities like deafness and dumbness.