High Court to courts: Act as parent to those who are unable to defend themselves

Saurabh Malik

Tribune News Service

Chandigarh, May 5

In a significant judgment liable to change the way the subordinate judiciary functions, the Punjab and Haryana High Court has ruled that the judicial officers (presiding judges) of the courts were expected to assume a parent’s role to protect the interests of the persons legally or otherwise unable to act or defend themselves.

Justice Anil Kshetarpal asserted that the courts were expected to act as parens patriae or legal protector. “Whenever the presiding judges of the court observe that one of the parties to the litigation is unable to properly prosecute or defend his own case because of legal disability, poverty or illiteracy, the courts are expected to assume the role of a parent to do complete justice.”

The assertion by Justice Kshetarpal came in a case where a mother of three, married for 22 years, took divorce from her husband by way of mutual consent before marrying his mentally retarded brother within 12 days of parting ways.

Thereafter, she obtained permission to sell the entire agricultural land of her mentally retarded husband, measuring 43 kanals and 7 marlas, by filing a petition under the provisions of the Hindu Minority and Guardianship Act, 1956.

The petition was filed by the husband through the woman as his next friend. In the petition, only the general public was impleaded as a respondent. For serving notice of the petition, a notice was published in a newspaper, “Ashiana”, for appearance before the court the very next day. On the basis of the publication, the court allowed the petition and granted permission to sell the entire land.

Three other brothers then filed a suit for declaration and permanent injunction against the woman and her ex-husband. It was pleaded that the proceedings for getting the court’s permission to sell the agricultural land was an act of fraud. It was argued that the divorce was stage-managed and the petition was filed to grab/usurp the property. Along with the suit, an application for temporary injunction was also filed.

The trial court, however, did not grant the relief of temporary injunction. But the first appellate court reversed the order and granted the relief of temporary injunction against the alienation of the suit land and also passed a restrain order, resulting in the filing of the revision petition. Dismissing the petition, Justice Kshetarpal added that the presiding judge of the first appellate court by a well-reasoned judgment very ably discharged the function of parens patriae.

Farmland issue

• The assertion by Justice Kshetarpal came in a case where a mother of three, married for 22 years, took divorce from her husband by way of mutual consent before marrying his mentally retarded brother within 12 days of parting ways.
• Thereafter, she obtained permission to sell the entire agricultural land of her mentally retarded husband, measuring 43 kanals and 7 marlas, by filing a petition under the provisions of the Hindu Minority and Guardianship Act, 1956