MITAL, C. J. - (1.) THE appellant before us is the wife and the respondent is the husband. THE husband filed a petition for divorce on the ground that since before the marriage wife was suffering from schizophrenia and, therefore, was a person of unsound mind and sought nullity of marriage. THE wife was not impleaded through guardian inspite of saying that she was a person of unsound mind. When notice of the petition went to wife, she pleaded that she was a person of sound mind and the allegations levelled by the husband are false. After some proceedings, the husband filed an application under O. 32 R. 15 for appointment of the guardian since according to him wife was a person of unsound mind. THE wife contested the application and pleaded that she was a person of sound mind. While that application was being considered by the Family Court, the husband filed an application under O. 23 R. 1 (3) of the Code of Civil Procedure for withdrawing the application with permission to file fresh one on the same cause of action. THE notice of the application was given for the same day in the afternoon for filing reply and to argue the same. In short time reply could not be filed by the wife and the time sought for was declined but in arguments the application filed by the husband was contested. By a short order without giving reasons, the Family Court allowed the application without recording the finding that there was a formal defect in the application for annulling the marriage and allowed permission to file fresh one. This is wife's appeal.
(2.) ON a consideration of the matter, we are of the view that the appeal deserves to be succeeded. The non-impleading of the guardian was not a formal defect but that was a curable one and for that reason the Family Court gave opportunity to the husband to move application for appointment of guardian. We also find one more important aspect to be considered in this case that the question of appointment of guardian will arise only after court records a finding that the defendant is a person of unsound mind and in doing so enquiry will have to be made. Admittedly, in this case no enquiry was made. Counsel for the appellant has cited Tirtha Pradhan Vs. Balabhadra Pradhan (1), wherein a guardian was appointed a person of unsound mind without making proper enquiry. The High Court in revisional jurisdiction interfered with the order and set aside that order with a direction that enquiry be made in accordance with law. Accordingly, we allow the appeal and set aside the order of the Family Court granting permission to withdraw the application for annulment of marriage and to file fresh one. The earlier application is restored to its original number with a direction to the Family Court to decide whether the wife is a person of unsound mind and if he records a finding that yes she is, only then a guardian can be appointed and not otherwise. The apprehension of the counsel for the husband that if a finding is recorded that wife is a person of sound mind, the main petition will have to be dismissed. Of course, that will be the result and it would be unavoidable result and that will have to follow. The parties through their counsel are directed to appear before the Family Court, Udaipur on 24. 10. 1994.
(3.) WE are informed that after passing of the impugned order, the husband filed a fresh petition and on that petition evidence of three witnesses has been recorded. The material collected on that petition will be non-est and will not be taken note of by the Family Court in deciding the first petition. The appellant will have costs of the appeal from the husband which are quantified at Rs. 1,000/- (Rs. one Thousand ). The husband should pay the cost of the wife within two months from today. .;