JUDGMENT Piyush Mathur, J. 1. Being aggrieved by the rejection of an application preferred under Order 32 of the Code of Civil Procedure on behalf of the Wife Smt. Alka Jain against her husband Akash Jain, the Appellant-Wife has preferred the present First Appeal by impugning the legality and correctness of the order passed by the Principal Family Court, Gwalior, on Date 04.01.2010, in Case No. 180-A/2009/HMA, whereby the Court has refused to hold Preliminary Inquiry for ascertaining the fact of the Husband being deaf and dumb in terms of Order 32 of the Code of Civil Procedure. 2. The facts of the case demonstrate that Appellant Smt. Alka Jain and her Husband Akash Jain got married on Date 12.12.2006 and they were blessed with a Son, out of the wedlock, when later on some dispute arose between the couple, which compelled the Wife to initiate proceedings for the restitution of conjugal rights, by filing an application under Section 9 of the Hindu Marriage Act on Date 14.08.2008. The Husband quickly responded to the legal course adopted by the Wife, as he also approached the Family Court with yet another application/suit under Section 13 of the Hindu Marriage Act for securing divorce/judicial separation, by approaching the Family Court on Date 17.10.2008. 3. The present First Appeal relates to and arise out of the proceedings initiated on behalf of the husband Akash Jain, where the application preferred under Section 13 of the Hindu Marriage Act was submitted, not by the husband himself, but through his father Shri K.K. Jain, as his "Next Friend", on account of suffering from physical deformity of being a deaf and dumb person, where the description of the Next Friend/Legal Guardian was made in the Cause Title of the Application and no separate application was filed on behalf of the husband for taking permission of the Family Court for securing appointment of a Guardian/Next Fried, in view of the physical disability. The description regarding Age of the husband and wife, given in the Cause Title of the Application (preferred under Section 13 of the Hindu Marriage Act) demonstrate that the husband is aged 33 years and the wife is aged 26 years, which means that the husband was 'Major' at the time when the application was filed on his behalf under Section 13 of the Act and as such the provisions applicable in relation to a 'Minor' would certainly not apply to the present controversy, where after Rule 15 of Order 32 of CPC alone would become applicable, where the description of an inquiry about 'unsound mind' find mention, without there being any explanation or extension of the definition of other disablement about other physical deformities like deafness and dumbness. 4. It would not be out of place to mention here that on an earlier occasion the husband had approached this Court in Writ Petition No. 4625/09 by challenging the fixation of the maintenance amount, where this Court has found the order of maintenance to be adequate/proper, however, in view of Section 21 of the Hindu Marriage Act, an order of completion of proceedings within six months, was granted while disposing of the Writ Petition No. 4625/09, by the order Dated 12.10.2009. 5. Shri Deepak Chandna, Learned Counsel appearing for the Appellant has drawn our attention to the provisions of Order 32 Rule 15 of the Civil Procedure Code for demonstrating that the Law contemplate for an inquiry in relation to the determination of the fact of the disability, before permitting an applicant/plaintiff to proceed with the litigation and the Court is obliged to ascertain the necessity of appointing or allowing a litigant to be represented through a Next Friend/Guardian. He submits that Order 32 prescribe for the provisions in relation to the suits preferred by or against minors and persons of unsound mind and Rule 15 of Order 32 provide for the persons, who suffer from said disability, which would be treated to be such but it requires an inquiry by the Court for determination of the incapacitation of the persons by reason or any mental infirmity, with a view to protect their interest in the litigation. For ready reference, Rule 15 of Order 32 is quoted here-in-below ; 15. For ready reference, Rule 15 of Order 32 is quoted here-in-below ; 15. Rules 1to 14 (except Rule 2-A) to apply to persons of unsound mind-Rules 1 to 14 (except Rule 2-A) 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, of protecting their interest when suing or being sued. 6. Shri Deepak Chandna, Learned Counsel for the Appellant submits that although the husband has not described himself to be a person of unsound mind, but since the application/suit has been filed through Next Friend/Guardian, on account of his disablement, it was obligatory upon the Family Court to have first of all enquired about the physical disablement of the husband, for allowing him to prosecute his application through Legal Guardian. He further submits that the physical challenge of deafness and dumbness, as described in the Cause-Title by the husband was not properly pleaded in the application and the documents filed on behalf of the husband were not adequate for the Court below to have felt convinced about the dispensation of the inquiry. 7. Shri B.B. Shukla, Learned Counsel appearing for the husband submits that the fact of the disability of the husband was known to the wife right from beginning and she herself has made categorical description of the deafness and dumbness of the husband, when she submitted an application under Section 9 of the Hindu Marriage Act, seeking restitution of the conjugal right and as such there was no necessity of an inquiry. Shri Shukla further submits that while submitting an application under Section 13 of the Act, the husband had annexed all such documents and certificates, which were sufficient enough to prima-facie convince the Family Court to believe the correctness of the submissions advanced regarding physical disablement and since the Court was satisfied with the prima-facie material, it was justified in not ordering for a Preliminary Inquiry or an Inquiry into the correctness of the pleadings of the husband. Shri Shukla submits that the inquiry postulated in relation to an indigent person would not apply in a case of the present nature, where parties were already aware about the physical disablement and as such the Court has not committed any error in rejecting the application. Lastly, Shri Shukla has also submitted that in case the Court feels, an inquiry could be held, the same could be ordered at any stage of the proceedings and the parties would be bound by the orders of the Court. 8. We have heard Shri Deepak Chandna, Learned Counsel for the Appellant and Shri B.B. Shukla, Learned Counsel for the Respondent and have perused the record of the case made available by the parties for perusal of the Court. 9. Shri Deepak Chandna, Learned Counsel for the Appellant argues on the strength at a judgment of the Supreme Court reported as (2003) 3 SCC 225 Kasturibai v. Anguri Chaudhary, wherein the Supreme Court while examining the scope of Order 32 Rule 15 of CPC, (in the case of an old man of 87 years) has observed that when there exists no adjudication about the ailment or unsoundness of mind of a person, the safer course available for a Court of Law is to convene/hold an inquiry, as an absence of such an inquiry, would seriously affects the very invocation of the jurisdiction by a Court of Law, as the Supreme Court has observed thus; 11. On a bare perusal of the said provision, it is evident that the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by the court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. The respondent did not contend that Appellant 1 herein is of unsound mind. As noticed hereinbefore, the respondent herself had filed an application before the trial court for holding an inquiry to the effect that she suffers from mental infirmity. 12. The respondent did not contend that Appellant 1 herein is of unsound mind. As noticed hereinbefore, the respondent herself had filed an application before the trial court for holding an inquiry to the effect that she suffers from mental infirmity. 12. The learned trial court refused to do the same and in that view of the matter the High Court, in our opinion, while setting aside the said order could only issue a direction directing the learned trial court to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent herein was incapable of protecting her interest by reason of any mental infirmity or not. As no such inquiry was held, there cannot be any doubt whatsoever that the learned Single Judge committed a jurisdictional error in passing the impugned judgment which, the Division Bench as noticed hereinbefore upheld. 13. For the reasons aforementioned, the impugned judgments are set aside and the matter is directed to be remitted to the learned trial Judge for consideration of the matter afresh strictly in terms of Order 32 Rule 15 of the Code of Civil Procedure as also in the light of the observations made hereinbefore. 10. Shri Deepak Chandna, Learned Counsel for the Appellant has also drawn our attention to yet another judgment of the Supreme Court reported as (2003) 4 SCC 493 Sharda v. Dharmpal, wherein the Supreme Court was examining the extent of the right at privacy of an individual in relation to the medical examination, where an issue of protection of personal right was advanced for consideration of the Court that an individual cannot be forced to undergo a medical examination, contrary to his/her wishes, where the Supreme Court has held that since the Hindu Marriage Act provide for a variety of ground for securing divorce, which includes the mental unsoundness of mind, which could be gathered only through medical examination, it could not be said that it infringes any fundamental right or any right to personal liberty guaranteed under Articles 20 - 21 of the Constitution of India. The relevant Paragraphs in relation to the controversy at hand are reproduced hereinbelow; 32. Yet again the primary duty of a Court is to see that truth is arrived at. The relevant Paragraphs in relation to the controversy at hand are reproduced hereinbelow; 32. Yet again the primary duty of a Court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit. 50. We wish to point out that the question as to whether a person is mentally ill or not although may be a subject-matter of litigation, the court having regard to the provisions contained in Order 32 Rule 15 of the Code of Civil Procedure, Section 41 of the Indian Lunacy Act as also for the purpose of judging his competence to examine as a witness may issue requisite directions. It is there not correct to contend that for the aforementioned purposes the court has no power at all. The prime concern of the Court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to a test which would invade his right of privacy and may in some case amount to battery; but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests. 51. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests. 51. If the court for the purpose envisaged under Order 32 Rule 15 of the Code of Civil Procedure or Section 41 of the Indian Luancy Act can do it suo motu, there is no reason why it cannot do so on an application filed by a party to the marriage. 52. Even otherwise the court may issue an appropriate direction so as to satisfy itself as to whether apart from treatment he requires adequate protection inter alia by way legal aid so that he may not be subject to an unjust order because of his incapacity. Keeping in view of the fact that in a case of mental illness the court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the court may take recourse to such a procedure even at the instance of the party to this lis. 53. Furthermore, the court must be held to have the requisite power even under Section 151 of the Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth. 11. Shri Deepak Chandna, Learned Counsel for the Appellant has also cited a judgment of the Madras High Court, wherein the Court has found that before appointing a guardian-ad-litem, an inquiry must be conducted by the Court. The Judgment reported as AIR 1954 Madras 810 In re Periaswami Goundan provides in the following terms ; 5. ...No definition of the expression 'mental infirmity' is to be found in any of the books on the subject dealing with mentally defective persons, nor did the counsel on either side refer to any authorities on the subject; the case, therefore, is one of first impression and after giving the matter my careful consideration I am of opinion that Rule 15, Order 32 is intended to cover the case of persons like Dina Nath who are absolutely deaf and dumb and on that account are incapable of receiving any communications or of communicating their wishes or thought to others. The case would be different with those who are not absolutely deaf and dumb but partially so and are able to communicate with others though with some difficulty. 12. Shri B.B. Shukla, Learned Counsel appearing for the Respondent-Husband has drawn our attention to a Judgment of the Madras High Court, which is reported as AIR 1941 Madras 524 Govindayya v. Ramamurthi, wherein the Court has observed that if the details are placed on record by way of an affidavit alongwith the application/suit, the Court may proceed further without convening the inquiry. For ready reference, the relevant Paragraph (un-numbered) of this Judgment is reproduced hereinbelow ; It seems to us that if the affidavit in support of the request to permit a person to sue as a next friend discloses all the facts which would satisfy the Court that the person on whose behalf the plaint is presented is by reason of unsound mind or mental infirmity incapable of protecting his interests, without any further enquiry the Court can permit the next friend to sue on his behalf, or if the allegations in the affidavit are not convincing, it is open to the Court to direct the next friend to produce witnesses before it in order that if may satisfy itself as to the mental capacity of the person on whose behalf the plaint is presented. All that is needed is that there should be some prima facie proof such as to satisfy the Court that the person was by reason of unsoundness of mind or mental infirmity incapable of protecting his interests, because an order permitting the next friend to represent such a person is not final. It is always open to the defendant to take out an independent application to have the said order revoked when the Court can go fully into the matter. But when once the Court permits the next friend to sue on behalf of such a person, it is not open to the Court to raise an independent issue in the trial as to the competency of the next friend to represent him in the suit. 13. But when once the Court permits the next friend to sue on behalf of such a person, it is not open to the Court to raise an independent issue in the trial as to the competency of the next friend to represent him in the suit. 13. Shri B.B. Shukla, Learned Counsel appearing for the Respondent has relied upon a judgment of the Bombay High Court reported as AIR 1985 Bombay 372 Clara Auroro De Branganca v. Sylvia Angela Alvares, wherein the Bombay High Court has observed that an inquiry could be conducted "before or during" the pendency of the suit. The relevant Paragraphs 13 and 15, relied upon by the Learned Counsel for the Respondent is quoted hereinbelow; 13. ...The Division Bench, as already said, has merely laid down the procedure that ordinarily has to be followed when a suit is filed by a person said to be of unsound mind, and thus, the said Division Bench decision is not an authority for the proposition that a suit filed by a person through a next friend is vitiated if inquiry under Order 32. Rule 15 C.P.C is not held at the time of the institution thereof. The said decision constitutes merely an authority for the proposition that an inquiry has necessarily to be held by the Court in order to record a finding as to whether or not a plaintiff who had sued through a next friend is of unsound mind. 15. ...An appeal, as it is well settled, is a continuation of the suit, and hence, since in the present case an inquiry was held and it was found that the respondents Joseph Salvador and Bridget were of unsound mind, it has necessarily to be held that the requirements of Rule 15 Order 32 had been duly satisfied. We may also point out that what is relevant is that at the time of the institution of the suit, a person is of unsound mind and in such cases, the suit can be instituted by such person only through a next friend. The need of a next friend is not a result or a consequence of the finding given by the Court that a person is of unsound mind, but it is a necessity which arises in view of the mental infirmity itself. 14. The need of a next friend is not a result or a consequence of the finding given by the Court that a person is of unsound mind, but it is a necessity which arises in view of the mental infirmity itself. 14. The controversy as brought by the Litigating Parties before this Court revolves around disability of the husband, who claims himself to be hundred percent deaf and dumb on the strength of the medical papers and certificates of the Competent Authority, on the basis of which, a prima-facie opinion, certainly, could be formed, but the fact remains that the disablement is one such predicament, which places a person into a different category altogether, where he requires assistance of a Guardian or a Next Friend, for prosecuting his legal remedies, in a Court of Law. This requires an initial inquiry about the scope and sweep of the ailment/disablement of the individual, with a view to ascertain the extent of the disablement qua his claims and other legal rights, including the right to prosecute through a person of his choice (Legal Guardian/Next Friend/Father/Mother). Therefore, it becomes necessary for a Court of Law to ascertain the existence and extent of the disablement by holding a Preliminary Inquiry, also for the purposes of securing confirmation of the medical papers/report of the Expert, which were issued prior to the initiation of the legal proceedings. 15. The present case certainly projects a peculiar fact situation, where the wife has almost admitted about the physical disablement of the husband while first initiating the proceedings under Section 9 of the Act for seeking restitution of conjugal rights, therefore, at a first glance, it operates as a stumbling block against the wife to justify filing of an application in a subsequently initiated proceedings by the husband under Section 13 of the Act, when the wife makes a prayer to the Court for convening an inquiry into the averments about the disablement of the husband, before permitting him to proceed through his Next Friend/Father, but when the application preferred by the Wife under Order 32 Rule 15 of CPC is analyzed independently, it nowhere whittle down the requirement of an inquiry by the Court, before proceeding with the trial, when there exist inadequate material for reaching a conclusion about grant of permission, to prosecute through Legal Guardian or Next Fried, without an enquiry. 16. 16. The inability to properly (or loudly) hear, due to malfunctioning of auditory nervous system of the body/ear of an individual in one glaring fact, which could not be easily disbelieved, when someone approaches the Court of Law, with pleadings to substantiate such disablement, but it simultaneously impose a duty upon the Court to ascertain the correctness of such averments and to hold a prima-facie inquiry for satisfying itself about the existence and extent of such disablement, because no such conclusion could be drawn or presumption could be gathered, on the basis of simple averments, made in the Petitions/Applications by the Litigating Parties, since possibility of setting up a false claim or incorrect claim could not be ruled out, without holding an inquiry. 17. It would thereafter become easier for the Court to draw another distinction about the disability of a person, to speak and hear properly (or not at all) with or without the assistance of the scientific devices (like Hearing Aid) and to understand the nature of the legal proceedings with the kind of disability, a person project before the Court to be suffering from and then the Court would be justified in recording appropriate conclusions and even presumptions, but without conducting any inquiry, the Court would expose itself to the danger of violating the procedure and provisions, prescribed in the Indian Evidence Act, more particularly in a case, where a person is neither a "minor" nor a person of "unsound mind", but claims to suffer from such disablement, which can not be judged, without holding an appropriate inquiry, about the actual existence of such disablement, as also about the extent of such disablement. 18. The matrimonial disputes, pending before a regular Court of Law or before a specially created "Family Court" under Special Enactment of Family Courts Act, 1984, requires special attention to the compliance of the procedural requirement envisaged in concerning Family Laws and the Courts adjudicating the matrimonial disputes are also expected to treat these cases, as Special Category of Cases, if not "Special Cases", while keeping in view the Legislative intendment of the Family Laws, therefore, when a Litigant approaches the Family Court with a specific prayer (about his predicament), the Court should analyze each case and each circumstance in its entirety before exercising its jurisdiction, for imparting justice to the Litigating Parties. 19. 19. Yet another aspect of the provisions contained in Family Courts Act would demonstrate that when the Parliament, in its wisdom has not provided an absolute right of representation to a Litigant, in all Family disputes, by placing fetters on the right of the representation through a Legal Practitioner, (as per Section 13 of the Family Courts Act) it becomes all the more necessary to the Court to inquire, at the threshold as to whether a Spouse could be granted permission/leave to prosecute and/or defend himself/herself, through a "Next Friend" (if not a Guardian, when not a Minor), in the circumstances, when one suffers from physical impairment of some limbs or organs of body and do not fall within the definition of a person of "unsound mind" as described in the Explanation appended to Rule 1 of Order 32 of the Code of Civil Procedure, therefore, when an inquiry relates to such a fact without holding which, a Litigant could not be allowed to initiate proceedings in the Family Court, then the Court cannot dispense with the inquiry which could otherwise terminate the proceedings at the threshold. 20. The Supreme Court while examining the scope of Order 32 Rule 15 of CPC has clearly found in its judgment reported as 2003 (3) SCC 225 Kasturibai v. Anguri Chaudhary that the Trial Court must convene an inquiry about the disablement (unsoundness of the mind/mental infirmity) and only after recording a finding about the physical incapacitation of the person concerned, the Court should proceed with the Trial, as the same would otherwise expose the Court to commit a jurisdictional error, in so proceeding with the Trial. Therefore, in view of the latest pronouncement of the Supreme Court in the case of Kasturibai (Supra), an irresistible conclusion appears in the fact situation of the present case that even when the husband/applicant has annexed certain certificates and documents, showing his disablement, the Family Court was required to conduct an inquiry with a view to record its satisfaction and a finding about the extent at the disablement of the applicant first, before proceeding with the trial of the case. 21. 21. In this view of the matter, the Trial Court has certainly committed a jurisdictional error, by rejecting the application of the appellant, preferred under Order 32 Rule 15 of CPC, by not holding the inquiry, for determining the existence and extent at the physical disablement of the Husband while presuming the existence of such disablement on the basis of some documents alone, without convening the desired inquiry. 22. Therefore, the Impugned Order Dated 04.01.2010 passed by the Principal Family Court, Gwalior, in the H.M. Case No. 180-A/09 is set aside and the First Appeal preferred under Section 19 of the Family Court Act is hereby allowed. 23. Consequently, the family Court is directed to conduct an inquiry in relation to the existence and extent of the physical disablement of the applicant/husband and to record a finding about the necessity of appointing Next Friend/Guardian of the husband. The Appeal is allowed with costs of Rs. 2,500/- (Rs. Two Thousand and Five Hundred) payable by the Husband to the Wife. Needless to observe that the Family Court shall conduct and conclude the inquiry expeditiously, by affording adequate opportunity to the Litigating Parties.