PATNA, India, Oct. 24 -- Patna High Court issued the following judgment on Sept. 25:
Heard.
2. The present appeal is directed against the order dated 25.10.2021 passed in Guardianship Case No. 09 of 2017 by the learned Principal Judge, Family Court, Katihar, whereby and whereunder the learned Court has dismissed the petition of the appellant filed under Section 7(1)(g) of the Family Court Act, 1984 for declaration of the appellant as the legal guardian of respondent No. 1 who is unmarried and 50 percent mentally retarded person.
3. The case of the appellant as per petition filed before the Family Court is that the appellant and respondent No. 1 are full brothers. The respondent No. 1 is 47 years old and 50 percent mentally retarded person. Their father was a retired Railway Employee who died on 30.01.2017. The mother of the appellant and respondent No. 1 has already died before the death of their father. The appellant is posted as a Teacher in KV at Katihar having his own family. The appellant is facing troubles regarding proper care of the respondent No. 1, his medical expenses and other necessities to lead his life. The appellant, therefore filed Guardianship Case No. 9 of 2017 for declaring the appellant as legal guardian of respondent No. 1, as after being declared as legal guardian of respondent No. 1, the appellant will be entitled for grant of Railway Family Pension which is being granted by the Railway to the physically/mentally disabled children of Railway Employee and after getting pension, he would be able to properly maintain his brother (respondent No. 1).
4. The appellant has examined three witnesses in order to prove his case which are P.W. 1 Manas Ranjan Sen, P.W. 2 Shankar Prasad Mandal and P.W. 3 Sudha Kumari.
5. The learned Principal Judge, Family Court, Katihar, after considering the materials available on record, came to the conclusion that appellant and respondent No. 1 are full brothers. However, learned Family Court dismissed the petition of the appellant on the ground that he has not exhibited any document which could suggest that his late father was employed in Indian Railways nor he has exhibited any medical certificate to suggest that his brother (respondent No. 1) is 50 percent mentally retarded person. Though a photo-copy of certificate issued by the Chief Medical Officer, Katihar dated 30.05.2017 was brought on record which suggests that respondent No. 1 is 50 percent mentally retarded person, but in the absence of certified copy of said certificate and any medical prescription suggesting that respondent No. 1 was under treatment regarding his ill health, learned Family Court came to the conclusion that appellant has not proved his case and therefore dismissed the petition filed on behalf of the appellant. Being aggrieved by the order of learned Principal Judge, Family Court, Katihar, the appellant has approached this Court.
6. It is submitted by learned counsel for the appellant that learned Court below has committed a grave error in dismissing the case, and such dismissal is per se illegal and unsustainable in the eye of law. It is urged that there was sufficient material on record to establish that appellant and respondent No. 1 are full brothers and respondent No. 1 is 50 percent mentally retarded person. The respondent No. 1 is unmarried and living along with the appellant. The appellant is married person and he has his own family expenses. The appellant, although has two sisters but all are married and settled. The father of the appellant was Railway employee and there is a provision for family pension to a mentally retarded person whose father/mother were in the services of Indian Railways. The appellant has also brought on record, though not exhibited the medical certificate of respondent No. 1 showing 50 percent mentally retarded which was issued by the Civil Surgeon-cum-Chief Medical Officer, Katihar, which was not considered by the learned Family Court and in a flimsy manner, the petition of the appellant was dismissed.
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