P. D. Sharma ( 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 Harsaran Kaur annulled their marriage by a decree of divorce. The parties were left to bear their own costs. ( 2 ) THE parties were married at 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 inspite 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 Bakhshi Gurcharan Singh Advocate filed 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 time forced her to take some medicine to undergo an abortion which adversely affected her health. He further stated that on account of ill-treatment mated out to hsr 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 petitioners evidence. ( 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 petitioners 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 byholding that the non-compliance of the provisions made in order 3 2, rule 15 of the Civil Procedure Code was mere irregularity. The husband-petitioner to remove any lacuna moved an application under Order 32, rule 5 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 Daal 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 am 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 Judga 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. The learned counsel for the appellant strenuously maintained that the order and decree passed by the Court below were in fact anullity and void because these were passed against a person of unsound mind who not properly represented. The learned counsel for the appellant strenuously maintained that the order and decree passed by the Court below were in fact anullity and void because these were passed against a person of unsound mind who not properly represented. He relied on a Bench decision of the Lahore High Court in the case, Stated Mahbub Hussain Shah v. Anjuman lmdad Qarza which lays down :- "there is lack of inherent jurisdiction in a Court to pass a decree against a minor if the minor is not proporly represented. In the case of a minor who is not properly represented he must be taken to 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 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 pro ested 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 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. " 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 and another v. Mathai Cheriavan where it was enunciated as follows :- "it 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 and others v. Hashem Ali Kazi and (2) Dalip Chand v. Firm Ganga Ram Sahib Ram Sachdeva. 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 goad appointment and the minor or insane in those proceedings was considered as having been duly represented. He, however, REFERRED TO to the cases (1) Atma Singh v. Shrimati Jangir Kaur, and (2) Karam Chand v. Narain Singh, 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 to another, set of three cases, (1) Ram Kishen and another v. Radhey Lal (2) Sultan Singh and others v. Rachhpal (3) 0m Prakash v. Pt. Radhey Shyam Kathawachak 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 sweetwill and pleasure without the permission of the Court. Radhey Shyam Kathawachak 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 sweetwill and pleasure without the permission of the Court. In the present case none of the propositions enunciated in the above two sets of cases in question because Dayal Singh was appointed guardian-ad litem of his insane daughter against his consent which he expressed vehemently in writting. Further, the appellant did not impugn the proceedings held in the Court below simply on he ground that no formal order for appointment of guardian ad litem of the insane appellant were passed initially. Keeping in view the express provisions of Order 32, rule 32, rule 4 (3) of the Civil Procedure Code and the decisions in (1) Ismail Ebrahim s (2) Satis Chandra Bandopadhya s and (3) Dalip Chand s cases, 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. ( 4 ) FOR the above reasons, the appeal is allowed and the order and decree of the trial Judge are set aside. The case is remanded to Shri Mohan Lal Jain, Additional District Judge, Delhi, for fresh disposal after appointment of guardian-ad-litem of Shrimati Harsaran Kaur who is of unsound mind and in accordance with law. The costs will abide the event. ( 5 ) 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.