IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.754 of 2009 SUYASH KUMAR SINGH son of Shri Bijay Kumar Singh, resident of vill.- Shahpur, P.S.-Nathnagar, Distt.-Bhagalpur------Appellant. Versus 1. SMT. ASHA SINGH daughter of Shri Sudhir Chandra Choudhary, resident of H.E.C. Colony, Sector 2 m Side-5 Quarter no.C/D/635 presently residing at Rama Bhawan Rajendra Colony, P.O. and P.S., Naugachiya, District – Bhagalpur and a permanent resident of vill.and Post- Jairampur P.O. and P.S. Bihpur, Distt.-Bhagalpur. 2. Sri Sudhir Chandra Choudhary, natural guardian and next friend of her daughter, Asha Singh, resident of Rama Bhawan, Rajendra Colony, P.O. & P.S.-Naugachhia, Distt.-Bhagalpur. ------------------Respondents. ----------- For the appellant : Mr. Shib Nandan Rai, Sr. Advocate Mr. Bimalendu Mishra, Advocate. For the respondent : Mr. Sunil Kumar, Advocate Mr. Sanjay Kumar Pandey, Advocate. ------------ 12. 22.11.2010 The present appeal is directed against the order dated 29.8.2005 passed by the Principal Judge, Family Court, Bhagalpur, in Marriage Case no.24 of 2001 whereby he has dismissed the suit and disallowed the amendment petition filed on 11.12.2002 by the appellant and also directed for continuance of payment of permanent alimony to respondent no.1. Marriage Case no.24 of 2001 had been filed by the present appellant against the respondent, his wife, seeking divorce on the ground that she is not mentally sound. Petitioner had filed an amendment petition on 11.12.2002 to the effect that after name and parentage of respondent no.1 the word “ through Sri Sudhir Chandra Choudhary being the father, natural guardian and next friend of her daughter Smt. Asha Singh presently residing at “ Rama Bhawan ” . Rajendra Colony P.O. & P.S. Naugachia, Distt.- Bhagalpur be added ”. On 4.1.2003 a written objection has been filed by the respondents to the amendment petition and the 2 amendment petition was pending. The court below heard the Marriage Case no.24 of 2001 on merit and after recording evidence of both parties, the court has come to the conclusion that respondent no.1 is not of sound mind, she is not able to understand anything and she was unable to give consent to her marriage due to unsoundness of mind. As per her own statement she was given electric shocks in the year 1980 and in the year 1991 she was examined by Dr. K. K. Sinha, Dr. Ashok Kumar, Dr. M. Haque and Dr. Shailender, who are Psychriatiasts, and three more electric shocks were given to her by Dr. K. K. Sinha. On the basis of the aforesaid evidence the court has come to the conclusion that respondent is of unsound mind. But, however, the court below has observed that respondent has not been sued through next friend as well as guardian as contemplated in the provision of Order XXXII of the Code of Civil Procedure and a defendant of unsound mind must be sued through next friend or guardian and plaintiff has failed to do so. In such circumstances, the suit is not maintainable due to defect as pointed out above. The suit was dismissed and the court below directed that plaintiff should continue to pay the said amount of maintenance allowance Rs.1,000/- per month as permanent alimony to the respondent no.1. The above order has been challenged by the plaintiff in the present appeal. Learned senior counsel appearing on behalf of the appellant has contended before this Court that the court below has erred in dismissing the Marriage Case no.24 of 2001 on the ground 3 that respondent has not been represented as contemplated in the provision of Order XXXII of the Code of Civil Procedure and court below has erred in taking note of filing of the amendment petition dated 11.12.2002. Respondent has also filed objection. Even on merit learned court below has come to the conclusion that respondent is of unsound mind by placing reliance on the evidence of the respondent that she was examined by four doctors at Ranchi and she was given electric shocks right at the age of nine years. As such, court below ought not to have dismissed the suit only on the issue that she has not been sued through next friend as well as guardian as per provision of Order XXXII of the Code of Civil Procedure and the amendment application remained unnoticed during the course of argument and the suit was dismissed. Learned senior counsel has brought to the notice of this Court the provision of Rule 15 Order XXXII of the Code of Civil Procedure which contemplates that Rule may be applied to persons to adjudge them before or during the pendency of the suit of unsound mind and on enquiry the court may also protect the interest of such persons of mentally unsound. The provision of Rule 15 Order XXXII of the Code of Civil Procedure reads as follows :- “ 15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind- Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, or protecting their interest when suing or being sued. ” 4 The provision goes to show that Rule 15 Oder XXXII of the Code of Civil Procedure may be applied to persons for declaring them of unsound mind and the contention of the learned senior counsel for the appellant is to the effect that the court below without applying the provisions of Rule 15 Order XXXII of the Code of Civil Procedure has come to the conclusion that respondent is not of unsound mind and the court below dismissed the suit as well as the amendment petition. Learned counsel for the respondents has opposed such contention to the effect that the amendment petition has not been sued against the respondent as per provision of Order XXXII of the Code of Civil Procedure and the plaintiff has not made any effort for disposal of the said application. In view of the fact aforesaid, the court below has rightly dismissed the suit as also the amendment petition. We have got occasion to go through the order of the court below as also the provision of Rule 15 Order XXXII of the Code of Civil Procedure which speaks that provision of Rule 1-14 except rule 2A may be applied to persons to adjudge them of unsound mind and the court below on enquiry may protect the interest of the persons before or during the pendency of the suit. The fact only remains that the court below has come to the conclusion that respondent is of unsound mind but it was the duty of the court below to pass order after applying mind under the provision of Rule 15 Order XXXII of the Code of Civil Procedure and protect the interest of the person. In this case the fact remains that the court below has 5 come to the conclusion that the respondent is of unsound mind being in the evidence available and as the amendment petition is still pending, it has to be observed that the court below ought not to have dismissed the suit only on the ground that the plaintiff/appellant has not taken steps to see that the respondent was represented by her guardian father. In view of the facts and circumstances discussed above and also taking note of the reference of the learned senior counsel regarding Rule 15 Order XXXII of the Code of Civil Procedure, we are of the opinion that judgment and decree dated 29.8.2005 passed by the court below is set aside and the appeal as well as the amendment petition is allowed. The order passed by the court below regarding continuance of making payment of maintenance allowance of Rs.1,000/- per month as permanent alimony shall remain intact. Sudip ( T. Meena Kumari, J.) ( Kishore K. Mandal,J. )