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Judgment
S.T. Ramalingam, J.—This civil miscellaneous appeal is against the order dated 19.11.1987 made in I.A. No. 537 of 1984, a petition filed
u/s 80 of the Indian Lunacy Act, 1912, in G.O.P. No. 109 of 1970 on the file of the Second Additional District Judge, Pondicherry.
Certain basic facts, which are not in dispute, may first be stated. The appellant Joseph Felix Ferdi and Navier has a brother by name Lucian
Marolle Navier (hereinafter referred to as Lucian). Both of them are Ex. servicemen of the French Army. Lucian was engaged in the war of Indo-
China. A splinter hand bomb injured his head. He was detained as a prisoner of war for several months in Indo-China. He was not mentally all
right. He was released by Viet Minh Authorities of Hanoi, and was sent to the Military Mental Hospital, Laveran, Marseilles. The medical experts
at the Marseilles hospital granted leave of long duration for illness with liability to be renewed every six months. They also directed him to go back
to his native town at Pondicherry, so that a reunion with his family members might help him to improve his mental condition. The Military
Department granted him a pension for invalidity temporarily rated at 60% valid for the period from 7.2.1966 to 6.2.1969. Even though he was
directed for periodical check-up, he had never been medically examined during his long leave while he was at Pondicherry. As a result of this lack
of medical care, as alleged by the appellant in his counter filed in I.A. No. 537 of 1984, Lucian lost his mental power, which is styled as
schizophrenia, and murdered the two children of the appellant. Though he was convicted by the Sessions Judge, this Court acquitted him on the
ground that he was mentally insane at the time of the commission of the crime and recommended for his admission in the Government Mental
Hospital at Kilpauk, Madras, by Judgment dated 25.6.1970 reported in Navier Moralle In re. 1970 M.L.J. 718 : 1970 L.W. 149.
While Lucian was an inpatient at the Mental Hospital, Kilpauk, the appellant applied for an inquisition to be made as also for his appointment as
guardian of the person and curator of his properties, before the Second Additional District Judge, Pondicherry in O.P. No. 109 of 1970 under
Sections 62, 63 and 71 of the Indian Lunacy Act, 1912. The Second Additional District Judge taking into consideration the birth certificate of
Lucian as well as the judgment of this Court dated 25th June, 1970, passed in the criminal appeal and a letter dated 22.2.1971 from the
Superintendent, Government Mental Hospital, Madras, appointed the appellant as legal guardian for the person of Lucian and administrator of his
possessions, after declaring Lucian as a person suffering from insanity. The appellant was authorised by the said order to collect from the hands of
the Pay-master from the French General Consulate in Pondicherry all sums of money payable to the said Lucian, and directed the appellant to
keep an account of the money drawn by him, and of the expenses incurred for the lunatic''s maintenance.
On 5.4.1980, Lucien was discharged from the hospital and was sent back to Pondicherry. On his arrival at Pondicherry, the appellant with a
view to give Lucian absolute peace free from any interference from third parties, took up a separate residential building at door No. 29, Villianur
Road, Pondicherry. Lucien was provided with all modern amenities. While Lucien was residing at the aforesaid address, the respondent viz.,
Soucila Regina Juliette Navier was visiting Lucian, as a result of which, Lucian expressed his desire to get married by his letter dated 12.8.1980.
As per the appellant''s counter in I.A. No. 537 of 1984, Lucian mentioned about the respondent.
Thereafter, the appellant filed I.A. No. 1150 of 1980 in O.P. No. 109 of 1970 u/s 151 of the CPC praying the first Additional District Judge,
Pondicherry to permit the celebration of the marriage of the appellant''s brother Lucian with the respondent herein. The first Additional District
Judge examined Lucian and found that he had been cured of his mental deficiency and observed that the answers to questions put by him were
those of persons of normal mental condition. He was also fortified by a medical certificate dated 7.8.1980 and granted permission on 31.10.1980
(vide Ex. P-3).
Meanwhile, the respondent and her mother filed a declaration on 15.9.1980 (marked as Ex. R-1) before a Notary at Pondicherry and
conveyed the intention of the respondent herein to marry Lucian. They also mentioned about the court-permission sought by the appellant herein as
well as the permission applied for by the appellant herein with the Municipal Authorities: The declaration also says that Lucian has conveyed his
intention to marry the respondent not only to the appellant, but also to his Psychiatrist. Lucian was also stated to be in good conscience during that
period so as to give his consent. The declaration also stated that the respondent and her mother whole-heartedly consented for the marriage purely
in the interest of Lucian''s future recovery and for leading a peaceful life.
Earlier to the declaration, the French Consulate at Pondicherry objected to the Municipality granting permission for the marriage, as per Ex. R-
13 dated 10.9.1980. As such, the Municipality has not granted permission for the marriage. Nevertheless, in pursuance of the declaration dated
15.9.1980 made by the respondent and her mother, the marriage took place between the respondent and Lucian on 15.9.1980. For abundant
caution, the marriage has been registered under the Special Marriages Act on 23.10.1981 as per Ex. P-7. This was also followed by a marriage
conducted in Church on 6.1.1982 as per Ex. P-6. It is further brought to light that the respondent has given birth to a child on 6.11.1982 (Vide
Exs. P-6 and P-9).
While so, on 16.3.1984, while the respondent was four months pregnant, she filed I.A. No. 537 of 1984 in the main O.P. before the Second
Additional District Judge, Pondicherry u/s 80 of the Indian Lunacy Act to remove the appellant from guardianship of the Lunatic Lucian and
appoint the respondent in his place and to direct the appellant to render accounts for all the amounts collected by him She also filed I.A. No. 536
of 1984 for interim relief directing the appellant to give an account of the amounts received by him and to deposit into court the balance remaining
in his hands. The respondent also filed I.A. No. 535 of 1984 for directing the appellant to deposit into court the entire pension and issue a cheque
to Lucian for his current expenses. During the pendency of these petitions, the respondent gave birth to a second child on 20.9.1984 (See Ex. P-
10 birth certificate).
The learned Second Additional District Judge granted the interim reliefs. Aggrieved by the interim reliefs granted by the Second Additional
District Judge. Pondicherry, the appellant preferred C.R.P. Nos. 2412 and 2413 of 1984 on the file of this Court and also filed C.M.P. Nos.
8432 and 8433 of 1984 for stay of operation of the orders passed by the learned Second Additional District Judge, Pondicherry. Justice Sathar
Sayeed passed a common order in the civil miscellaneous petitions on 28.8.1984 to withdraw a sum of Rs. 8,000 from the French treasury on or
before 15.9.1984 and pay the same to the respondent for the maintenance of the respondent and her children as an interim measure till the
respondent''s status as the wife of the lunatic and paternity of her child is decided in appropriate proceedings to be taken by the respondent. Later
on, the main Civil Revision Petition Nos. 24i2 and 2413 of 1984 were taken up for final disposal on 10.4.1987 by Justice Sivasubramaniam. The
learned Judge directed the Second Additional District Judge, Pondicherry to dispose of the I.A. No. 537 of 1984 on or before 30.6.1987 and
directed the appellant not to withdraw any pension amount payable to the alleged lunatic (Lucian). The learned Judge observed as follows : ''It is
open to the court below to pass appropriate orders regarding the right to pension amount at the time of the final disposal of the matter...The court
below is further directed to consider also the question of rendition of accounts by the revision petitioner at the time of final disposal of the main
petition*. With the aforesaid directions the Revision Petitions preferred by the appellant were dismissed.
In pursuance of the directions given by this court, the Principal District Judge, Pondicherry has taken up I.A. No. 537 of 1984 for trial. P.Ws.
1 to 3 were examined and Exs. P-1 to P-22 have been marked on behalf of the respondent herein. On behalf of the appellant herein, R.Ws. 1 to 4
were examined and Exs. R-1 to R-13 have been marked.
Considering the oral and documentary evidence as well as the respective contentions of the parties, the learned District Judge allowed the
petition. The appellant was removed from the guardianship of Lucian as well as from the management of his properties. The appellant was also
directed to render accounts to the District Court for the entire period running from the date of appointment as guardian and Manager. In the place
of the appellant, the respondent was appointed as guardian for the person of Lucian and his properties. The trial court also gave relief that the
respondent herein is entitled to receive the pension or any amount of property due to Lucian and the respondent was directed to submit accounts
to the District Court Pondicherry every year in the month of January, until further orders of that court.
Aggrieved by the judgment and decree of the trial court, the present civil miscellaneous appeal has been preferred by the appellant, who is the
respondent before the trial Court.
Learned senior counsel Mr. Masilamani appearing for the appellant urged the following points:
On the allegations made the paragraphs 16, 17, 19 and 20 of the affidavit, the petition has to be dismissed in limine, and the only course open to
the petitioner is to ask for discharge of the guardian under the provisions of the Lunacy Act, since, according to the petitioner, Lucian is leading a
normal life. In other words, nothing is stated in the affidavit that after leading a normal life, Lucian once again became a lunatic, and, as such, the
petition is liable to be dismissed and the lower court has misdirected itself in giving a finding about the legitimacy of the marriage of the respondent
with Lucian, and, on that ground, erred in granting the relief as prayed for by the respondent.
Alternatively, he put forth the second point viz., that the respondent sought a relief of appointment of guardian in the place of the appellant itself
shows that Lucian continued to be a lunatic, and as such, he could not have consented for a marriage with the respondent and hence, even if the
alleged marriage is said to have taken place, it is not a valid marriage, because the consent given by the lunatic is not a valid consent, and as such,
the respondent is not a fit person to be the guardian for the lunatic Lucian, as she, with her eyes wide open, consented for the marriage with the
lunatic only with a view to grab at his properties.
The court has no jurisdiction to give a finding about the validity of the marriage while dealing with removal of a guardian under the provisions of
the Lunacy Act.
Point 1 : - A perusal of the pleading and the oral and documentary evidence as well as the judgment rendered in Navier Moralle In re. 1970
M.L.J. (Crl.) 718 clearly shows that there is no force in the contention of the learned Counsel for the appellant. From the decision referred to
above, the following facts emerge: Lucian murdered his brother''s (appellant) daughters Beatrice, aged five years, and Pierette, aged five months,
by smashing them on the floor at about 10.30 a.m. on 31.10.1968. Thereafter, Lucian was under the observation of Dr. Corunalio, who was given
an opinion that Lucian has been suffering from schizophrenia or split type of personality. While acquitting Lucian, the High Court observed as
follows:
Thus the evidence in this case clearly establishes that the appellant killed his two nieces without any provocation or motive on account of his fit of
insanity and that he did not know that what he did was wrong. We have referred to the decisions of the Supreme Court and the Privy Council and
pointed out that it is necessary for the prosecution to prove mens rea required for the offence of murder and it could not be said, on the facts of this
case, that the prosecution has discharged that burden. There is no circumstance from which it can be inferred that the appellant knew what he was
doing or that it was wrong. This is a case in which the appellant is clearly entitled to the benefit of the defence of insanity allowed u/s 84 of the
Indian Penal Code. We find that the appellant did commit the acts alleged against him, namely, that he smashed his two nieces to death on the
morning of the date of the occurrence, but that he did so while he was insane. The conviction of the appellant u/s 302 of the Indian Penal Code and
the sentence of imprisonment for life imposed on the appellant, are, therefore, set aside. But in view of our findings that the appellant committed the
acts alleged against him by reason of his unsoundness of mind and that he continues to be in the same state of mind, we direct him to be detained in
the Government Mental Hospital, Madras, and the above action taken by this Court shall be reported to the Government u/s 471 of the Criminal
Procedure Code in order to enable it to take such further action as contemplated by Section 474 of the Criminal Procedure Code.
''Schizophrenia'' is a kindred form of insanity, marked by introversion and loss of connection between thoughts, feelings, and actions. It is not a
continuous process. The respondent has stated in paragraph 16 of her affidavit as follows:
When my husband came to see me along with the respondent, he was apparently normal. At the time of betrothal and marriage and till now my
husband is in absolute lucid state of mind and without any attack of mental sickness. He is taking continuously medical treatment and check-up for
his mental sickness. He was also having lucid mind at the time and before betrothal.
This clearly shows that Lucian is not continuously suffering from lunacy, but he is suffering from schizophrenia, which means that he will be having
intermittent mental sickness. As such, simply because, Lucian is experiencing lucidity intermittently, it cannot be said that no guardian need be
appointed for such a person. In fact, the affidavit seeks for removal of the appellant from guardianship and for appointment of the respondent
herein, as guardian in his place.
According to the Lunacy Act, ''lunatic'' means an idiot or person of unsound mind. Lucian, by virtue of (he order passed by this Court in the
Criminal Appeal had been a ''criminal lunatic'' as defined in Sub-clause (4) of Section 3 of the Lunacy Act.
He ought to have been discharged from the hospital under the provisions of Section 30 of the Prisoners Act, 1900. But, there is nothing to
indicate the manner of discharge of the lunatic. However, it is stated that Lucian was discharged from the hospital on 5.4.1980 by the appellant and
he has taken care to look after his comforts. In the counter-affidavit filed by the appellant, he states that while Lucian was residing with him, the
respondent became intimate with him through the medium of a pimp woman and was visiting him clandestinely as a result of which, Lucian
expressed his desire to get married by his letter dated 12.8.1980. To that extent, there is no controversy.
The contention of the learned Counsel for the appellant is that taking into consideration the allegations made in paragraph 16, 17, 19 and 20 of
the affidavit, the petition has to be dismissed in limine and the only course open to the respondent is to ask for discharge of the guardian under the
provisions of the Lunacy Act. According to the appellant, Lucian is leading a normal life. In other words, nothing is stated in the affidavit that after
leading a normal life, Lucian once again became a lunatic so as to ask for an appointment of a guardian or to replace an existing guardian. The
fallacy in the argument is that the appellant failed to note that Lucian is suffering from Schizophrenia and is not a regular lunatic. According to the
dictionary meaning, a person suffering from Schizophrenia need not behave all the time as a lunatic. It is kindred form of insanity marked by
introversion and loss of connection between thoughts, feelings and actions. It is not a continuous process. As such, the respondent has necessarily
to ask for a guardian and has filed an appropriate application for removal of an existing guardian on the ground that the appellant is not taking
proper care and acting adverse to the interest of Lucian. As a necessary corollary, while seeking a relief that the respondent should be appointed in
the place of the appellant, she has necessarily to bring forth to the knowledge of the Court about her interest with Lucian. As such, she has put
forth her marriage and asked the Court to appoint her as the guardian in the place of the appellant. Hence, the Court has necessarily to go into the
question of marriage whether there is a valid marriage or not. The parties also have directed their mind in that direction and let in evidence to prove
the validity of the marriage. The attempt of the appellant is, to prove that the respondent has married Lucian while he was suffering from lunacy and
as such their marriage between the respondent and Lucian is not a valid marriage since the consent, that was given by the lunatic is not a valid
consent, as such the respondent should not claim legitimacy of the marriage and as such, not competent to be the guardian of Lucian. Evidence has
been let in with reference to the validity of the marriage and the part played by the appellant. No objection was raised by the appellant to the
reception of evidence in that direction. The appellant cross-examined the respondent on the collusive character of the marriage. The appellant also
adduced evidence elaborately more on the question of the validity of the marriage. As such, the Court has necessarily to give a finding on the
evidence let in about the validity of a marriage even though the Court is not bound to give a finding on the validity of the marriage. It is true, that this
Court while disposing of the civil revision petition, directed the respondent to prove her status as a wife of the lunatic and paternity of her children
to be decided in an appropriate proceedings to be taken by the respondent. But, that will not prevent the respondent from applying for a
guardianship under the Lunacy Act, 1912. u/s 80 of the Lunacy Act, the District Court for any sufficient cause may remove any manager appointed
by it not being the curator and may appoint any other fit person in his place and may compel the person so removed to hand over the property in
his hands to his successor and to account to such a successor for all monies received and disbursed by him. Under Sub-section 2, the Court may
also for any sufficient cause, remove any guardian of the person of the lunatic appointed by it and may appoint any other fit person in his place. The
trial court while appointing the respondent has taken into consideration that two children have been born to the respondent through Lucien. The
fact that two children were born to the respondent through"" Lucien is not denied. Only the legitimacy is questioned. Hence, the fact that the
respondent gave birth to two children through Lucien is not denied, but only her status as a wife of Lucien is questioned. Even on this aspect, the
appellant''s conduct is not above board. Ex. P-3 is an order passed in I.A. No. 1150 of 1980 in O.P. No. 109 of 1970. It says that the appellant
has moved the first Additional District Judge, Pondicherry seeking permission for the celebration of the marriage of the respondent with Lucian as
guardian of Lucien. On his application, the Court has examined Lucien and satisfied itself about the mental condition of Lucian and gave the
permission. The first Additional District Judge, Pondicherry observes as follows:
Lucien Marolle Navier was examined by the Court seems to have been cured of his mental deficiency. His answers to questions are those of a
person of normal mental condition. This is also attested by the Medical Certificate dated 7.8.1980 marked as Ex. P-1 therein. Hence, the petition
is allowed. No costs.
It is no doubt true that this order is later in point of time of the alleged marriage that has taken place between the respondent and Lucien on
15.9.1980; but the fact that the appellant has taken initiative to celebrate the marriage of Lucian with the respondent cannot be denied. Another
factor which the trial court has taken into account while appointing the respondent as guardian and removing the appellant from the guardianship is
the abortive attempt made by the appellant to get a declaration that the marriage between Lucien and the respondent is null and void. Ex. P-21
dated 23rd January, 1986 is a decretal order passed in O.S. No. 2 of 1985 on the file of Principal District Munsif, Pondicherry in a suit initiated by
the appellant for a declaration that the Church marriage celebrated on 17.9.1981 between Lucien and the respondent is null and void. The suit has
been filed by the appellant on 28.1.1985 and he allowed it to be dismissed for default on 23rd January, 1986. The trial court has also taken into
account that the appellant who has been the guardian of Lucien since 1981 was receiving amounts as pension of Lucien did not care to furnish into
Court any account till date in spite of repeated directions from the Court. The answer given by the learned Counsel for the appellant, that the
appellant was not directed by the Court to render an account while appointing him as guardian is contrary to the provisions of the Lunacy Act. The
legal liability of a guardian to account for the income of the beneficiary cannot be taken away or a guardian cannot taken refuge not to account for
the income of the beneficiary on the ground the court that appointed has not directed him to account. The fact that Court appoints a person as a
guardian brings with it all the rights and liabilities of a guardian appointed as per the orders of the Court. As such, I see no force in the contention of
the learned Counsel for the appellant that the appellant has not rendered any account since the Court which has appointed him, has not directed
him to do so.
Even in the alternative contention put forth by the learned Counsel for the appellant, I see no force or merit. According to the learned Counsel
for the appellant, the mere asking for appointment of a guardian in the place of the appellant itself shows that Lucien continued to be a lunatic and
as such, he could not have consented for a marriage with the respondent and hence even if the alleged marriage is said to have taken place, that is
not a valid marriage because the consent given by the lunatic is not a valid consent and as such, the respondent is not a fit person to be the guardian
for Lucien, as she had, with her eyes wide open, consented for the marriage with Lucien only with a view to grab at his properties. The learned
Counsel was begging the question. At one stage, he argued that the validity of the marriage should not be gone into in this proceeding and in
another stage, he argues on the validity of the marriage. As I stated earlier, the validity of a marriage has to be gone into incidentally to find out the
capacity of the respondent to be the guardian of Lucian. Since this Court has directed the respondent to take out separate proceedings to prove
the legitimacy of her marriage, it is not safe to give a finding on that question. However, the fact that she gave birth to two children and gave
companionship to Lucien is sufficient to appoint her as the guardian in the place of the appellant though he happened to be the brother of Lucian as
well as a male nurse in his career.
Point No. 3 : - It is true that the court has no jurisdiction to give a finding about the validity of the marriage while dealing with removal of a
guardian under the provisions of the Lunacy Act. But, the Court necessarily has to go into the question about the validity of the marriage when a
person seeks relief to appoint her as a guardian solely on the ground that she has married a person who was a lunatic. In that view of the matter, it
cannot be said that the trial court erred in giving a finding about the validity of the marriage especially when parties have let in evidence mainly on
the issue of marriage. For all these reasons, I see no merit in the appeal and the appeal is dismissed. I direct the parties to bear their own costs.