K.S. Tiwana, J.
1. Amrit Lal filed petition under Section 13 of the Hindu Marriage Act, 1955, in the Court of District Judge, Rohtak against his wife Asha Rani for dissolution of the marriage on the ground that she was of unsound mind. She was sued through her brother Gian Chand who engaged a counsel and filed a written statement on her behalf. After trial the learned District Judge Rohtak on 28-2-1973 holding that Asha Rani has been of incurably unsound mind for three years prior to the presentation of the petition granted a decree for divorce in favour of Amrit Lal respondent. This appeal has been filed on behalf of Asha Rani challenging that decree.
2. Shri Roop Chand, learned counsel for the appellant, has argued that the respondent has sought a decree against the appellant on the ground that she is of unsound mind and had been so, even three years, before the presentation of the petition, but at the time of presentation of the petition he did not comply with the provisions of Order XXXII of the Civil Procedure Code (1908) (hereinafter referred to as the Code). Rule 3 of Order XXXII of the Code which deals with the case of a minor is relevant in this case. In Punjab and Haryana Sub-rules (3) and (4) of Rule 3 of Order XXXII of the Code have been substituted and Rules 6 and 1 have been added. Rule 3 of Order XXXII of the Code as applicable to the States of Punjab & Haryana is as Under :--
'(3) Guardian for the suit to be appointed by Court for minor defendant.
(1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their addresses, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff Under Sub-rule (2) above.
(4) The Court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and in default of compliance, may reject the plaint.
(5) A person appointed under Sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revi-sional Court and any proceedings in the execution of a decree.
(6) Any application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appointed.
(7) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or, where there is no such guardian, upon notice to the father or other natural guardian of the minor or, where there is no father or other natural guardian to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule :
Provided that the Court may, if it sees fit, issue notice to the minor also.' Rule 15 of Order XXXII of the Code which prescribes the procedure in case of persons of unsound mind is as follows :--
'15. Application of rules to persons of unsound mind. The provisions contained in Rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.'
By virtue of Rule 1'5, Rule 3 applies to the case of persons of unsound mind who sue or are sued.
3. A study of the language of Rules 3 and 15 of Order XXXII of the Code quoted above makes it manifest that the provisions of Rule 3 of Order XXXII of the Code are mandatory and the appointment of a guardian is not a mere formality. The plaintiff in a suit and the petitioner in other proceedings has to furnish list of the relatives of the minor or the person of unsound mind with the plaint or the petition, as the case may be. The Court has to, acting on the application, require the plaintiff or the petitioner to file with the plaint or the petition a list of such persons who can be appointed guardians for a minor defendant or the defendant who is mentally unsound after satisfying itself that the proposed guardian is a fit person to represent the interest of the minor or of the person of unsound mind. The Court has to appoint a guardian ad-litem out of the list, required under Order XXXII, Rule 3 of the Code as applicable in Punjab and Haryana, or some other person who has no interest adverse to that of the mentally unsound defendant. In the case in hand no list of the relatives was filed by Amrit Lal as required by Rule 3 of Order XXXII of the Code quoted supra with a request for appointment of a guardian. Even the Court did not ask for any such list from Amrit Lal petitioner. The respondent remained content only by giving the description in the heading of the petition as 'Smt. Asha Rani daughter of Shri Moti Ram son of Jhangi Ram House No. 25, Barrack No. 25, Ward No. 6, Gandhi Nagar, Rohtak, through Shri Gian Chand son of Shri Moti Ram as next friend, resident of House No. 25, Barrack No. 25, Ward No. 6, Gandhi Nagar, Rohtak.' A report on the summons issued for service on Smt. Asha Rani shows that Gian Chand first refused to accept the service on behalf of the appellant. Later on he filed a written statement through a counsel. With the help of the counsel for the parties I have gone through the interim orders and other parts of the file but I have not been able to find any order appointing Shri Gian Chand as the guardian of Asha Rani who was not only alleged by the petitioner-respondent to be a person of unsound mind but was also held to be so by the learned District Judge.
4. Any proceedings recorded or the decree passed against a minor or mentally unsound defendant without the appointment of a guardian by the Court in the light of the above-quoted provisions would be void because of the contravention of the mandatory provisions of law. Rule 15 of Order XXXII of the Code is explicit and postulates an inquiry into the unsoundness of mind of a person who sues or is being sued as a person of unsound mind. It casts a duty on the Court to hold such an inquiry and reach a definite conclusion that the allegation is well founded. However, the inquiry required by the rule need not be elaborate but is to be only of a preliminary nature. The Judge can satisfy himself on the basis of the affidavits, examination of the person alleged to be of unsound mind in his chamber or can ask the assistance of a medical expert. The Judge can even compel the mentally infirm party to attend the Court for deciding the question whether such a person is incapable of representing his case. After this inquiry the Court has to resort to the procedure of appointment of a guardian in the case of a person of unsound mind.
5. The record of the case does not show if any inquiry of this type was made or the procedure contained in Order XXXII, Rule 3, as applicable to the States of Punjab and Haryana and Rule 15 of Order XXXII of the Code was complied with. The decree passed against the appellant thus cannot sustain.
6. The learned counsel for the petitioner-respondent argued that in view of Section 99 of the Code no decree can be reversed or substantially altered nor the case remanded in appeal on account of any mis-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. According to the learned counsel for the respondent no miscarriage of justice has occasioned because of the non-compliance with the procedure of Order XXXII, Rule 3 of the Code in this case. The tenor of his argument is that even if the proceedings in this case are held to be illegal these have not resulted in the failure of justice. The reply to this argument of the learned counsel for the petitioner-respondent is provided by the observations of the Supreme Court in Ram Chandra Arya V. Man Singh, (1968) 2 SCR 572 at p. 574 = (AIR 1968 SC 954 at p. 955) which is as under :--
'It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of Rule 15 of Order 32 of the Code of Civil Procedure.'
The decree of dissolution of marriage passed in this case is thus a nullity and is void.
7. As a result of the above discussion the appeal is accepted and the decree passed against the appellant in this case by the learned District Judge Rohtak on 28-2-1973 for dissolution of marriage is set aside. The case is remanded to the Court below which passed the decree to re-decide it in view of the above observations and after compliance with the provisions of Order XXXI! Rules 3 and 15 of the Code as applicable in the States of Punjab and Naryana. The respondent, through his counsel, is directed to appear in the Court of District Judge, Rohtak, on 17-11-1976.