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M.A. Mohamed Thambi Maricayar Vs. M.O. Shaik Farid Maricayar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 531 of 1949
Judge
Reported inAIR1952Mad80; (1951)2MLJ524
ActsCode of Civil Procedure (CPC) , 1908 - Sections 132(1); Lunacy Act, 1912 - Sections 41, 42 and 64
AppellantM.A. Mohamed Thambi Maricayar
RespondentM.O. Shaik Farid Maricayar and anr.
Appellant AdvocateMohammed Ismail, Adv.
Respondent AdvocateS. Rangaswami Iyengar, Adv.
Excerpt:
- - the learned district judge rejected this request as being an extraordinary one, however the appellant failed to produce the alleged lunatic in court because the alleged lunatic is a gosha lady. it is now well settled that gosha ladies are exempt from personal appearance and are as a matter of right, entitled to have a commission issued for their examination......who is alleged to be a lunatic. on this application the district judge directed production of the alleged lunatic. thereupon the petitioner applied under section 151, civil p. c. and sections 61 to 64 of the lunacy act to have the inquisition regarding the alleged lunatic conducted in any place except in court or such other similar public places, as the alleged lunatic is a gosha lady not accustomed to attend courts. the learned district judge rejected this request as being an extraordinary one, however the appellant failed to produce the alleged lunatic in court because the alleged lunatic is a gosha lady. ultimately on 2nd april 1949 the district judge dismissed the petition for appointment of a guardian on the ground that the alleged lunatic was not produced in court. it is against.....
Judgment:

Chandra Reddi, J.

1. The petitioner in O. P. No. 3 of 1949 on the flle of the District Court, East Tanjore, is the appellant. He filed a petition under Section 71 of the Indian Lunacy Act and under Section 151, Civil P. C. for appointing him as the guardian of the person and manager of the property of one Jainambu Gani, his wife, who is alleged to be a lunatic. On this application the District Judge directed production of the alleged lunatic. Thereupon the petitioner applied under Section 151, Civil P. C. and Sections 61 to 64 of the Lunacy Act to have the inquisition regarding the alleged lunatic conducted in any place except in Court or such other similar public places, as the alleged lunatic is a gosha lady not accustomed to attend Courts. The learned District Judge rejected this request as being an extraordinary one, However the appellant failed to produce the alleged lunatic in Court because the alleged lunatic is a gosha lady. Ultimately on 2nd April 1949 the District Judge dismissed the petition for appointment of a guardian on the ground that the alleged lunatic was not produced in Court. It is against this order that the present appeal has been filed.

2. In support of the appeal it was contended that the appellant was entitled to request the Court to examine the alleged lunatic in any place except in public, and that the learned Judge in rejecting that request overlooked the provisions of Section 132, Civil P. C. and Sections 41, 42, 61 and 64 of the Indian Lunacy Act. Under Section 132(1), Civil P. C. 'Women, who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court'.

There is a similar provision in the Indian Lunacy Act. Section 42 of the Lunacy Act is in the following terms : 'The attendance and examination of the alleged lunatic under the provisions of Section 41 shall, if the alleged lunatic be a woman who, according to the manners and customs of the country, ought not to be compelled to appear in public, be regulated by the law and practice for the examination of such persons in other civil cases.'

Section 64 of the Act says that,

'The provisions of Sections 40, 41 and 42 shall regulate the proceedings of the District Court with regard to the matters to which they relate'. Reading the relevant provisions of law the only conclusion I can reach is that the Court cannot insist upon the production of an alleged lunatic in an open Court. It is now well settled that gosha ladies are exempt from personal appearance and are as a matter of right, entitled to have a commission issued for their examination. In my opinion the same principle applies to the case of production of a lunatic also and a Court cannot insist on the production of the alleged lunatic in Court. The person responsible for the production of the alleged lunatic is entitled to request the Court to examine her in a place other than the public Court. Hence the order of the learned District Judge rejecting the application of the appellant to examine the alleged lunatic in any place other than in open Court and the consequential order dismissing the original petition for appointment of a guardian are not correct and should be set aside.

3. The petition is remanded to the trial Courtfor disposal on the merits. The District Judge willexamine the alleged lunatic either in his chambersor in open Court after excluding the general pub-lic from it altogether. The costs of this appeal willabide the result of the main petition.


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