A minor is a person who has not attained the age of majority i.e. 18 years, [male or female] as per Indian Majority Act. Minors are classified as such may be according to mental growth or condition; but they do have certain rights equal to others. They are necessary parties in a proceeding before court of law where their rights come into question, be it direct or incidental. But as per Indian Contract Act of 1872, a minor cannot enter into a contract. So how could he engage a lawyer to plead his case. Law insists that the natural low ranking mindset when compared to adults/major people must not be a hindrance to a minor to properly represent himself before a Court of Law. In this post, I am giving a brief note about the procedure when a minor comes either as a plaintiff or defendant in a civil suit which is governed by the Code of Civil Procedure, 1908.
The procedure in a suit where a minor is a party is dealt with in Order 32 of Civil Procedure Code. Every suit shall be instituted in the name of a minor by a person who in such suit shall be called the next friend of the minor. If minor is a defendant, then the Court shall appoint a proper person to be guardian for the suit for such minor. A decree passed against a minor without appointment of a next friend or guardian is null and void.
Suits are filed by parents for themselves and representing their minor children. A person who wants to be the guardian of a minor has to apply to the Court in that behalf and he must swear by an affidavit that he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be appointed a guardian. Court will verify the genuineness and appoint him as the guardian.
If the suit was instituted by minor without being represented by next friend, the defendant can move application to have the plaint taken off the file.Any person who is of sound mind and has attained majority can be next friend or guardian.If there are no fit persons to be guardian, then Court may appoint any of its officers to be the guardian.
A minor party can decide to proceed with the suit or not after attaining majority. He can discharge the next from his representation and can proceed in his own name by moving an application in that behalf in the Court.
Is there auto-discharge of next-friend when minor attains majority? Can a mother/plaintiff withdraw a suit in which she represents a minor son who is the second plaintiff and has rights affecting him is an issue? I may deal with this issues later; but for the time being, leaving it for your healthy discussion and comments to this post. Thank You.