M.G.MUKHERJI, J. - (1.) THIS appeal is filed by Smt. Sunita Sajnani impugning an order dated 16th September, 1996 passed by the learned Judge, Family Court, Udaipur in Civil Misc. Case No. 58 /92 whereby the appellant was ultimately found to be not mentally healthy. There was however no specific finding given by the learned Judge, Family Court that the appellant was incapable, by reason of any mental infirmity, of protecting her interest when she has been against by her husband.
(2.) THE parties were married according to Hindu rites on 15th December, 1990 at Udaipur. There was initially an advertisement given in the Rajasthan Patrika in June, 1990 by Ratan Kumar pursuant to which the father of Sunita corresponded with them and there was an engagement in September, 1990 at Jaipur. The marriage took place on 15th December, 1990. Soon after the marriage it was found that Smt. Sunita had an aversion to go to her husband at Udaipur where he was working as a Clerk -cum -Cashier in the State Bank of Bikaner and Jaipur, but ultimately at the instance of her husband she had to seek her transfer at Udaipur where they lived for sometime. It is her case that at the behest of her husband she had to suffer an abortion and she became somewhat physically weak. She was serving in the Bank for about 12 years and prior to her transfer to Udaipur on 2.5.1991 she was serving at Jaipur. She got Computer Certificate in 1987. The husband suspected her of mental illness and on 2.5.1992 filed a petition under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce on the ground inter alia that she was suffering from Schizophrenia and therefore, she was a person of mental disorder or of unsound mind and she was guilty of cruelty. The wife Sunita was not impleaded through guardian despite the allegation made by the husband that she was a person of unsound mind. When notice of the petition went to Sunita, she pleaded of unsound mind and the allegation levelled against her by her husband was false. After some proceedings, the husband filed an application under Order 32, Rule 15, Civil Procedure Code for appointment of the guardian since according to him, his 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 Order 23, Rule 1(3) of the Code of Civil Procedure for withdrawing the application with permission to file a 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 for arguments. The wife could not file the reply and the time she sought for to file an objection having been declined, by the reply and order without giving reasons, the Family Court allowed the application without regarding the finding that there was a normal defect in the application for annulling the marriage and granted permission to the husband to file a fresh suit. The wife thereafter filed an appeal before this Court. A Division Bench of this Court by a judgment and order dated 27th September, 1994 in D.B. Civil Misc. Appeal No. 65/93 observed inter alia that the appeal filed by the wife deserves to be allowed. Non -impleading of the guardian was not a formal defect, but that was a curable one and for that reason the Family Court gave an opportunity to the husband to move an application for appointment of guardian. The Division Bench observed that the question of appointment of guardian would arise only after the Court records a finding that the wife is a person of unsound mind and in making such a finding, an enquiry will have to be made. Admittedly, in this case at the relevant time the enquiry was made. The Division Bench accordingly set aside the order of the Family Court granting permission to the husband to withdraw the application for annulment of marriage and to file a fresh one and directed the earlier application to be restored and the Family Court Judge was asked to decide whether the wife is a person of sound mind and it was made clear that if the Family Court Judge records a finding that she is a person of unsound mind, only then a guardian could be appointed and not otherwise. When the apprehension was raised on behalf of the husband that if the finding is recorded that the wife is a person of sound mind, the main petition would have to be dismissed, the Division Bench answered the question to the effect that indeed that would be the result and he would be the inevitable result which will follow. The Division Bench accordingly asked both the parties to appear before the Family Court, on 24th October, 1994.
(3.) AFTER the matter was remanded to the Family Court, it commenced enquiry. The husband Ratan Kumar was examined as A -DW 1. One Dr. D.M. Mathur was examined as A -DW 2 and Dr. Ved Prakash Sharma was examined as A -DW 3. The documents Exs. 1 to 25 were exhibited. The appellant Sunita was also examined as N A -DW 1. Ultimately, the Family Court came to a finding that the appellant -wife was not mentally healthy.;