HAR SARAN KAUR Vs. IQBAL SINGH KOHLI

JUDGEMENT

(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 (2) Relief 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