P.D. Sharma, J.
1. This is a first appeal against the order and decree of the learned Additional District Judge, Delhi, who on an application under Section 12 of the Hindu Marriage Act by Iqbal Singh Kohli against his wife Shrimati Har Saran Kaur annulled their marriage by a decree of divorce. The parties were left to bear their own costs
2. The parties were married of West Patel Nagar, New Delhi, on 21st April 1957. After the marriage the parties lived together as husband and wife here but no child was born out of the wedlock The petitioner alleged that his wife the respondent was suffering from schizophrenia i.e.. lunacy at the time of their marriage and that in spite of best treatment she had not been cured According to him. the disease was incurable He therefore, sought annulment of marriage with her by a decree of nullity as provided in Clause (b) of sub Section (1) of Section 12 read with Clause (ii) of Section 5 of the Hindu Marriage Act. He stated in paragraph 1 of the petition, that the respondent was a lunatic and, therefore, she was sued through her father Dayal Singh as her guardian who had no interest adverse to her. The said Dayal Singh through his counsel Bakshi Gurucharan Singh Advocate tiled his written statement dated 11th April. 1960. in the Court controverting the above allegations He. on the other hand, urged that his daughter was not of unsound mind but had been cruelly treated by the petitioner who was not faithful to her and at one lime forced her to take sonic medicine to undergo an abortion which adversely affected her health. He further stated that on account of ill treatment meted out to her she was suffering from schizophrenia which was certainly not lunacy and in any case was curable. The petitioner in his replication repeated all that he had mentioned in his original petition.
3. The trial Judge on 23rd July. 1960, framed the 'following issues :--
(1) Whether the petitioner is entitled to a decree of nullity on the grounds alleged in the petition
The case was adjourned to 22nd December. 1960, for the petitioner's evidence The learned counsel for the wife-respondent on 22nd December 1960, raised a preliminary objection that the proceedings so far taken were nullified by the fact that no guardian-ad-litem of the respondent-wife had been duly appointed by the Court as was necessary under Order 32 of the Civil Procedure Code. He also raised some other preliminary objections which need not be stated here. The learned trial Judge after hearing arguments of the parties by his order dated 26th December. 1960, overruled the above preliminary objection by holding that that the non-compliance of the provisions made in Order 32, Rule 15 of the Civil Procedure Code was mere irregularity. The husband-petitioner to remove any lacuna moved an application under Order 32, Rule 15 of the Civil Procedure Code for appointing Dayal Singh father of his wife-respondent as her guardian-ad-litem The Court on 29th December. 1960, accepted the petition. The same day Dayal Singh filed an application requesting for his removal from the guardianship of his daughter, the respondent, on the ground that he had not been given any opportunity, before he was formally so appointed and that he was not willing to continue to function as guardian-ad-litem of his daughter, the respondent. The learned trial Judge by his order dated 5th January. 1961 dismissed this application merely on the ground that it was belated and was being made and pressed to delay the proceedings and to cause maximum harm to the petitioner. Subsequently Dayal Singh appeared in Court in obedience to the order of the trial Judge The Court after recording the evidence and hearing the arguments advanced at the bar passed the order and decree which are now being assailed by the respondent-wife-appellant
4. The learned counsel for the appellant strenuously maintained that the order and decree passed by the Court below were in fact a nullify and void because these were passed against a person of unsound mind who was not properly represented He relied on a Bench decision of the Lahore High Court in the case, Sayed Mahbub Hussain Shah v Anjuman Imdad Qarza AIR 1942 Lab 129. which lays down -----
' There is lack of inherent jurisdiction in a Court to pass a decree against a minor if the minor is not properly represented. In the case of a minor who is not properly represented he must be taken lo be no party to the proceedings at all and therefore, any decree which is passed against him without his being a party to the proceedings is a decree passed without jurisdiction, and similarly an award passed against him is null and void as against the minor. '
The learned counsel for the appellant referred to the record of proceedings maintained by the Court below which for ready reference has been noticed earlier and pleaded that initially the husband-petitioner did not file any application under Order 32. Rule 15 of the Civil Procedure Code for appointment of a guardian-ad-litem of the appellant and that no formal orders in fact were passed by the Court below appointing Dayal Singh as guardian-ad-litem of his daughter and that when on a subsequent application filed by the petitioner respondent orders were passed appointing Dayal Singh as such guardian-ad-litem he protested in writing against this appointment and expressed his unwillingness to function in that capacity during the pendency of the present litigation In his opinion appointment of Dayal Singh as guardian-ad-litem of the appellant was contrary to the express provisions of law and was invalid in all respects. He referred to Sub-rule (3) of rule 4 of Order 32 of the Civil Procedure Code which specifically mentions that no person shall without his consent be appointed guardian for the suit This provision of law, in my opinion, is mandatory and admits of no exception because the word used is ' shall ' The trial Judge made a mistake in appointing Dayal Singh as guardian-ad-litem of the insane appellant against his consent and that being so it can be legitimately urged that the insane appellant was not properly represented in the proceedings held by the trial Court. My view finds support from the case, Ismail Ebrahim v Mathai Cheri-Yan. (S) AIR 1956 Trav-Co. 70, where it was enunciated as follows ; --
'II is true that the consent need not be express The consent may be implied from the circumstances of the case But, in a case in which the proposed guardian has expressed his unwillingness to be the guardian for the suit it is the duty of the Court to appoint another person as guardian, and if the suit is allowed to proceed against the minor without another person being appointed as his guardian for the suit it cannot be said that the minor has been represented in the suit '
To the same effect are the decisions in the cases (1) Satis Chandra Bandopadhya v. Hashem Ali AIR 1927 Cal 488 (FB), and (2) Dalip Chand v. Firm. Ganga Ram Sahib Ram Sachdeva AIR 1936 Pesh 40 The learned counsel for the opposite side was not able to cite any authority where the appointment of a person as guardian-ad-litem of a minor or insane respondent against his willingness was considered as good appointment and the minor or insane in those proceedings was considered as having been duly represented He, however, referred to the cases (1) Atma Singh v Smt. Jangir Kaur. (1959) 61 Pun LR 40 and (2) Karam Chand v Narinjan Singh AIR 1938 Lab 709, where it was held that mere omission to record a formal order appointing a certain person as guardian-ad-litem of the defendant or as next-friend of the plaintiff was a curable irregularity and the proceedings held in the absence of such an order were not invalid in law. He also referred to another set of three cases, (1) Ham Kishen v. Radhey Lal, AIR 1932 All 130 (2) Sultan Singh v. Rachhpal AIR 1953 Pepsu 129, (3) Om Prakash v. Radhey Shyam AIR 1945 All 55, which seems to lay down that no guardian for a minor appointed by a Court, who has accepted the guardianship, has a right to withdraw from guardianship at his sweet will and pleasure without the permission of the Court. In the present case none of the propositions enunciated in the above two sets of cases is in question because Dayal Singh was appointed guardian-ad-litem of his insane daughter against his consent which he expressed vehemently in writing, further, the appellant did not impugn the proceedings held in the Court below simply on the ground that no formal order for appointment of guardian-ad-litem of the insane appellant was passed initially. Keeping in view the express provisions of Order 32 Rule 4 (3) of the Civil Procedure Code and the decisions in (1) Ismail Ebrahim's (S) AIR 1956 Trav-Co 70 (2) Satis Chandra Badopadhya's, AIR 1927 Cal 488 and (3) Dalip Chand's cases, AIR 1936 Pesh 40 I have come to the conclusion that there was lack of inherent jurisdiction in the Court below to pass the impugned decree against the appellant who was of unsound mind because she was not properly represented. The order and decree under appeal, therefore, cannot be sustained in law.
5. For the above reasons, the appeal is allowed and the order and decree of the trial Judge arc set aside. The case is remanded to Shri Mohan Lal Jain, Additional District Judge. Delhi, for fresh disposal after proper appointment of guardian-ad-litem of Shrimati liar saran Kaur who is of unsound mind in accordance with law. The costs will abide the event.
6. The parties through their counsel have been directed to appear in the Court of Shri Mohan Lal Jain. Additional District Judge. Delhi on 1st November. 1965.