Usage Of 'Deaf And Dumb' Is Ethically And Technically Inaccurate, Instead Use 'Deaf', 'Hard Of Hearing': Kerala High Court
The Kerala High Court stated that the term 'Deaf and Dumb' is ethically and technically inaccurate and is now recognized as offensive. It also observed that the term 'Hearing Impaired' is no longer used since impaired means hindered or damaged.
The present observations were made in an original petition in which the respondent is a hard-of-hearing person, and the original petition described her as deaf and dumb. The Court was considering whether conducting an inquiry under Order XXXII, Rule 15 of the CPC to seek representation through a Next Friend was mandatory.
The Division Bench of Justice Devan Ramachandran and Justice M B Snehalatha observed that the most accepted terms are 'deaf' and 'hard-of-hearing”.
Court said, “In later years “dumb” came to mean silent, but remained offensive because it also connotes cognitive disablement - stemming from the illusion that if one cannot use voice, you are probably not smart. The terms afore are ethically and technically inaccurate; and now recognised internationally to be offensive - particularly by the community. The term “Hearing-impaired” is also no longer accepted, though it was earlier preferred, as being politically correct. This was a well meaning term, but now not accepted because 'impaired' means hindered or damaged. The most accepted terms now are 'deaf' and 'hard-of-hearing'; and we will use only them in this judgment.”
Background
The respondent who was hearing-impaired moved an original petition before the Family Court for the return of gold ornaments and to make a fiscal claim against petitioners. Respondent filed an application for representing through Next Friend. This was opposed stating that leave of court was not obtained and no inquiry was conducted under Order XXXII, Rule 15 of CPC for seeking representation through Next Friend. The Family Court dismissed the application stating that there was no proof that the respondent was a person of unsound mind or incapable of protecting her interest. This was challenged before the High Court.
Order 32 deals with suits by or against minors and persons of unsound mind. It provides for the appointment of guardians or next friend to represent their interest in a suit. Order 32 Rule 15 provides that even persons who were not adjudged as having unsound mind can also apply for next friend or guardian if the Court was satisfied after 'enquiry' that the person was suffering from mental infirmities and was incapable of representing his interest in a suit.
It was submitted that the respondent was a hard-of-hearing person without verbal communication capacity and her interests are entitled to be protected by the assistance of a Next Friend. It was argued that inquiry under Order XXXII, Rule 15 of CPC was not for a person who vouches before the Court that she requires a Next Friend to represent her.
It was argued that inquiry for such a person is only an empty formality when a person herself claims to be incapable of suing or to be sued.
The Court noted that earlier hard-of-hearing people were often imperfectly represented as being ignorant of language or as if they were cognitively impaired. It noted that hard-of-hearing people have difficulty communicating with people who do not know sign language and may get isolated in society.
It noted that they were denied educational opportunities and civil rights. In the olden times, the Court noted that deaf persons were not given the same rights of inheritance and had to give satisfactory proof of intelligence. However, the Court stated that such situations are changing with time.
The Court relying upon various decisions stated that Rule 15 of Order XXXII of the CPC has to be construed liberally, especially when such a person seeks assistance of a Next Friend for representation before the Court. It thus noted that a person who is hard of hearing and incapable of verbal communication must be granted assistance under CPC for representation through a Next Friend.
The Court added that Rule 15 does not mandate that a person hard of hearing or incapable of verbal communication must seek leave of the Court to move the original petition represented through a Next Friend.
The Court stated that it is the duty of the Court to ensure that every person who is incapable of protecting their interest before or during the pendency of the suit gets the best opportunity to defend or prosecute the suit.
In the facts of the case, the Court noted that the respondent seeks representation through Next Friend and has admitted to being a hard-of-hearing person who is unable to communicate verbally.
The Court thus stated that the respondent who seeks assistance for representation through Next Friend must not be denied such assistance.
The Court thereafter stated that inquiry under Rule 15 of Order XXXII of the CPC is a statutory requirement and cannot be said to be an empty formality. It said, “In summation, we are without doubt that the learned court was enjoined to conduct a statutory enquiry, as mandated under Order XXXII Rule 15 of the CPC and there can be no conflict of view to this, going by the binding and other precedents covering the field.”
As such, the Court set aside the order of the Family Court and issued a direction to conduct an inquiry under Rule 15 of Order XXXII for the appointment of the Next Friend.
Counsel for Petitioners: Advocates Ummul Fida, C Ijlal, P Parvathy, Jai Govind M J
Counsel for Respondent: Advocates Joseph George P.A.Rejimon, Nikita Nair, Vivekjos Puthukulangara, Sajeev John T
Case Number: OP (FC) NO. 156 OF 2024
Case Title: Vineesh v Raji Radhakrishnan
Citation: 2024 LiveLaw (Ker) 612