The Punjab and Haryana High Court has held that 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.
A Single Bench of Justice Anil Kshetarpal observed in Sarjeet Kaur Versus Harbhajan Singh and Others.
Whenever the presiding judge(s) of the court observes that one of the party to the litigation is unable to properly prosecute or defend his own case because of legal disability or poverty or illiteracy, the courts are expected to assume the role of a parent to do complete justice. The learned Presiding Judge of the First Appellate Court by a well-reasoned judgment has very ably discharged the aforesaid function, the Court said.
One Sarjeet Kaur, married to Jaswant Singh for 22 years, took divorce in order to marry her husband’s brother, Raghbir Singh, a mentally retarded man, solely to usurp his property. As per the facts, 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.
Following this, Raghbir and his other two brothers filed a suit for declaration with a consequential relief of permanent injunction against Sarjeet Kaur and her former husband. It was alleged that the two played a fraud on Court with an aim to usurp property of Raghbir.
The Trial Court did not grant the relief of temporary injunction, however, the First Appellate Court reversed the order and granted interim relief in favour of Raghbir.
The instant revision petition filed against the Appellate Court’s order on the below mentioned grounds,all of which were rejected by the High Court:
- The first contention of the learned counsel for the petitioner is 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. ‘In fact, the proceedings under 8 of 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.
Further, the suit seeking declaration has been 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. Hence, there is no substance in the first contention.
2. The next contention was that the petitioner got married with second husband in order to look after his person and the property.
The court observed,The petitioner claims that she got divorce from the first husband by mutual consent after 22 years of marriage and within a period of 12 days, on the request of plaintiff No.1 and 2, she got married with second husband appears to be unpalatable.
3. The next contention is with reference to the extent of mental disorder.
The court observed, It would be noted here the respondents have produced on record a certificate issued by the Chief Medical Officer, showing that second husband is mentally retarded to the extent of 75% and his intelligence quotient level is clinically below 50. 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 opine that second husband is unable to protect his interest
4. The next contention is that the sale of the land is necessary to utilize the same for taking care of Raghbir Singh-second husband.
The court observed that, The petitioner has not produced any material to prove that Raghbir Singh is not being looked after by his brothers and nephews. At this stage, the Court is only to see a prima facie case. Hence, there is no force in this contention.
5. The next contention is that The marriage between the petitioner and second husband is a valid marriage and as such the court below ought not to have commented upon the same, until and unless the same is challenged in the competent court of law.
The Court observed that as per Section 5 (ii)(a) of the 1955 Act, a marriage can be performed by a person who is capable of giving a valid consent to it. Further, the wife of the brother comes within the degrees of prohibited relationship as per Section 3(g) of the 1955 Act
The Court held, without expressing the final opinion, prima-facie, the alleged marriage of the petitioner with second husband appears to be void in view of Section 5 (iv) read with Section 11 of the 1955 Act.
Read Order Here: