Next Friend Meaning in Indian Law
It is now well regulated and in accordance with the provisions of Ordinance XXXII of the Code that any person of sound mind who has reached the age of majority, who can represent and protect the interests of the minor, who resides in India and whose interests are not in conflict with those of the minor, may represent the minor as his closest friend. The person who represents the minor plaintiff as a closest friend cannot be a party to the same action as the defendant. Rules 6 and 7 of Order XXXII of the Code expressly provide that the next friend or guardian in the action may not receive money or real estate without the permission of the court and may not enter into an agreement or compromise without the permission of the court. The rights and limitations of the natural guardian provided for in the Hindu Guardianship Act are not contrary to the procedure of filing a claim by a future friend on behalf of the minor. Not only is there no express prohibition, but a reading of Rule XXXII of the Code would show that, whenever Parliament has deemed it appropriate to restrict the right of the closest friend, it has expressly provided for it in Rules 6 and 7 of Regulation XXXII of the Code. Rule 9 of Order XXXII – among other factors, specifies that if an next friend is not a guardian appointed or declared by the competent authority for that purpose, and an application is made by the guardian so appointed or declared who himself wishes to be appointed in place of the next friend, the court shall remove the next friend, unless he considers, For reasons that should be noted that the guardian should not be designated as the closest friend of the minor. Decision XXXII, rules 12, 13 and 14 of the Code empowers the minor plaintiff to take the decision either to continue the action or to abandon the action after reaching the age of majority. Thus, if the plaintiff decides to continue the action after reaching the age of majority, he or she may do so by means of an application, after which the next friend no longer represents the minor plaintiff from the moment the minor reaches the age of majority. Order XXXII Rule 12 of the Code of Civil Procedure requires that the minor plaintiff has the opportunity to continue the action or abandon the action and does not provide that the action is dismissed on this ground if the minor plaintiff does not make such a choice when he reaches the age of majority. If, during the lis pendens of the action, the court finds that the minor plaintiff has reached the age of majority, the court must ask the plaintiff to decide whether or not to continue the application.
In other words, the minor of full age during the lis pendens must be informed of the pending nature of the action and, in the absence of such notification, knowledge of the lis pendens of the action cannot be attributed to the minor. Another case occurred after the monkey selfie case, when the animal rights organization People for Ethical Treatment of Animals sued photographer David Slater and claimed to be the closest friend of a Sulawesi crested macaque. The principles derived from the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be appropriate for the next friend appointed under Order XXXII of the Code. The appointment of a guardian to represent the defendant or a closest friend to represent the plaintiff in the dispute is limited to the application only, and after the removal of that subsequent guardian ad litem/friend, the guardian`s right/duty within the meaning of section 4 (b) of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, another friend representing the minor in the action under Order XXXII, Rule 1 of the Code shall not deprive the duly appointed guardian of the right under the Hindu Guardianship Act until such time as such guardian has a contrary interest or such duly appointed guardian is removed in accordance with that Act. Nagaiah v. Chowdamma, (2018) 2 SCC 504. The term «guardian» within the meaning of Hindu guardianship law is a different concept from that of the «next friend» or «guardian ad litem». The representation by the «next friend» of a minor plaintiff or by a «guardian ad litem» of the minor defendant is purely temporary, also for the purposes of the respective litigation.
But such a guardian should not have an unfavorable interest against minors. If the natural guardian or duly appointed guardian has an adverse interest against the minor in the claim, another friend or guardian will represent the minor in the civil proceedings. Guardians ad litem are often used in family and juvenile courts, where the best interests of the child require an independent and neutral person to protect the rights of the child. The growing number of such representatives has led States to develop training and certification programmes for individuals who wish to serve as closest friends or guardians ad litem. Although lawyers can also represent minors, Next Friends provides valuable assistance to the courts. Prior to the Married Women`s Property Act of 1882 in English and Irish law (and similar laws at the same time in American law), it was common for a married woman to sue a closest friend. Nevertheless, this act, which allows a married woman to sue in any way as a woman sole, has made a future friend superfluous in the case of married women. State laws now set out the qualifications and duties of a person acting as a closest friend, but those laws more often refer to that person as a court-appointed guardian ad litem or special advocate.
Regardless of the designation, that person`s responsibility is now limited to representing a minor or an incapacitated person in litigation or legal proceedings. At common law, a closest friend represented a plaintiff, while a guardian represented a defendant. This distinction has been abolished in modern law. In common law, a law prochein ami is a person who represents another minor or who is unable to bring an action on his or her own behalf because of disability or other reasons, and who does not have a legal guardian. They are also known as process friends. When a relative who is the next of kin acts as a close friend of a person, that person is sometimes called the person`s «natural guardian» instead. Another friend has full control of the proceedings in the claim, as if they were an ordinary complainant, until a guardian or guardian is appointed in the case; But the next friend has the right to present evidence only on the same basis as any other witness. Madras High Court in Kaliammal, minor by Guardian, Patta Goundan v Ramaswamy Goundan, AIR 1949 Mad. 859 stated that it is not necessary to impose a court sanction for a future friend to sue if they are not incapacitated. This was also the view of the Allahabad High Court in K. Kumar v. Onkar Nath, AIR 1972 All.
81. The Kerala High Court upheld this in Gopalaswamy Gounder v. Ramaswamy Kounder, AIR 2006 Ker 138. In that case, the High Court held that any person who does not have an adverse interest in the minor`s may act as his next friend. According to the law, a child who has a guardian may bring an action against his guardian as such or against his closest friend, although he has always had to be defended by his guardian. In equity, he sued the next friend rather than the guardian and was defended by a guardian. Under U.S. law, Next Friends is sometimes allowed to hear habeas corpus charges to challenge the detention of prisoners who cannot appear in court on their own behalf. For example, during the war on terror that followed the attacks of 11 September 2001, family members, lawyers and non-governmental organizations sought to claim the title of future friends on behalf of prisoners considered enemy combatants in Guantanamo Bay and elsewhere.
[1] Historically, in the case of a minor, the father was prima facie the right person to act as the closest friend; In the absence of the father, the testamentary guardian was, at the very least, the closest friend; But any person who is not disabled can act as the closest friend as long as he has no interest in the action detrimental to that of the minor. A married woman has historically not been able to act as a next girlfriend (female covert), but this practice is no longer common, at least in the United States, where one or both parents of a minor may act as the next boyfriend. (Exceptions are cases of divorce or other custody cases; in such cases, courts often appoint a guardian or lawyer (independent of the parents) to represent the interests of the child, which may not coincide with the interests of one of the parents.) In the case of mental disability, a curator, guardian or committee represents the person in court. However, if they do not have such a representative, or if the committee has an interest against the applicant, they can sue another friend. A future friend is not a party to a lawsuit, but a court official. When the dispute is over, the next friend`s assignment ends. The next friend does not have the right to control the property of the person he represents or to take custody of that person. These rights may be transferred to a person appointed by a court as guardian of a minor or a prohibited person. At common law, if a person is unable to defend his or her own interests or make an application, the court appoints a person to represent his or her legal interests. In judicial terminology, this person was referred to as the closest friend, which is derived from the French term prochein ami.
People who needed another friend included minors, the mentally ill or mentally retarded, frail or senile people, and others whose disabilities prevented them from managing their affairs. «The law does not provide for the appointment of a closest friend for a minor who initiates legal proceedings, either as a plaintiff or as a plaintiff.
