Patna High Court
Anupma Kumari vs Gopal Kumar on 23 February, 2026
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.186 of 2025
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Anupma Kumari daughter of Chandra Mauli Sharma, Resident of Village-
Belbanna, Ward No.- 5 (Paschmi Pandarak) and P.S.- Pandarak, District-
Patna.
... ... Appellant/s
Versus
Gopal Kumar, S/o Vijay Singh, through his Guardian and father Sri Vijay
Singh, Resident of Village- Harauli, P.S.- Barh, District- Patna, at present
residing at Mohalla- Shahjanand Nagar, Right of State Bank of India Branch
Barh, District- Patna.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Jnanchandra Bhardwaj, Advocate
For the Respondent/s : Mr.Abhay Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE DR. ANSHUMAN)
Date : 23-02-2026
Heard learned counsel appearing for the appellant and
learned counsel appearing for the respondent.
Re. Interlocutory Application No. 01 of 2025.
2. The present interlocutory application has been filed
under Order I Rule 10 of the Code of Civil Procedure seeking
impleadment of the father of the respondent as Respondent No.
2 in the present Miscellaneous Appeal.
3. Learned counsel for the appellant submits that the
sole respondent is a person of unsound mind and, therefore,
ought to be represented through a guardian for the purpose of
the proceedings. It is further submitted that the negotiations
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relating to the marriage, including matters concerning dowry
and settlement, were conducted between the father of the
appellant and the father of the respondent. On that basis, it is
contended that the father of the respondent is a necessary party
and should be impleaded in the Memo of Appeal.
4. In view of this Court, the grounds urged for
impleadment of the respondent’s father as Respondent No. 2 are
legally unsustainable for the following reasons. Firstly, the
present Miscellaneous Appeal arises out of Matrimonial Case
No. 1363 of 2022 instituted by the appellant. In the said
matrimonial proceeding, the father of the respondent was not a
party, the dispute being exclusively between the husband and
the wife. Section 13(1) of the Hindu Marriage Act, 1955
explicitly provides that a petition for dissolution of marriage by
a decree of divorce may be presented only by either the husband
or the wife. Therefore, a third party, including the father of
either spouse, is neither a necessary nor a proper party to such
proceedings. Secondly, the appellant herself has taken the plea
that the respondent is a person of unsound mind and that such
condition existed even at the time of institution of the
matrimonial (divorce) case in the year 2022. Order XXXII of
the Code of Civil Procedure governs suits by or against minors
Patna High Court MA No.186 of 2025 dt.23-02-2026
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and persons of unsound mind. In particular, Order XXXII Rule
15 CPC provides 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, of
protecting their interest when suing being sued.]”
Meaning thereby, any suit by or against a person of
unsound mind is required to be instituted and prosecuted
through a duly appointed next friend or guardian, in accordance
with the provisions of Order XXXII of the Code of Civil
Procedure.
5. In the present case, it transpires that the
matrimonial (divorce) proceeding was neither instituted through
a next friend nor was the present Miscellaneous Appeal filed in
compliance with the said mandatory procedure.
6. This Court is of the considered view that the defect
goes to the root of the matter. In such circumstances, the present
interlocutory application cannot be entertained or allowed at the
appellate stage, particularly when the original matrimonial
proceeding itself was not conducted through a next friend as
required under law.
7. Accordingly, the present interlocutory application is
hereby dismissed.
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Re. Interlocutory Application No. 02 of 2025.
8. The present interlocutory application has been filed
under Section 5 of the Limitation Act, 1963, seeking
condonation of a delay of 24 days in filing the appeal.
9. However, from the stamp report, it transpires that
the present appeal has been filed within the prescribed period of
limitation. In light of the order dated 03.05.2023 passed by the
Division Bench of this Court in MA No. 474 of 2021 (Ranju
Devi vs. Chitranjan Singh), it has been held that the period of
limitation in matrimonial matters arising out of disputes from
marriage before this Hon’ble Court shall be 90 days instead of
30 days.
10. As such, the present interlocutory application does
not survive for consideration and need not be pressed.
11. Accordingly, the present interlocutory application
stands dismissed as not pressed.
Re. Miscellaneous Appeal No. 186 of 2025.
12. Upon perusal of the judgment under challenge, it
transpires to this Court that the matrimonial (divorce) case was
instituted against a person alleged to be of unsound mind
without adherence to the mandatory provisions contained in
Order XXXII of the Code of Civil Procedure, which governs
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proceedings by or against minors and persons of unsound mind.
The suit appears to have been decreed ex parte.
13. In such circumstances, we are not inclined to grant
any relief to the appellant, as the appeal itself is not
maintainable in law. Accordingly, the present Miscellaneous
Appeal is hereby dismissed as not maintainable.
(Bibek Chaudhuri, J)
( Dr. Anshuman, J)
Ashwini/-
AFR/NAFR CAV DATE NA Uploading Date 26/02/2026 Transmission Date NA
