ORDER :

Hima Kohli, J.

I.A. 6124/2016 (by the petitioner u/O XXXII Rule 3 CPC)

1. The present application has been filed by the petitioner praying inter alia that she be appointed as a guardian ad litem of her husband, respondent No. 3.

2. Counsel for the petitioner states that the respondent No. 3 had suffered a serious road accident in the year 1999, which had caused severe damage to his brain. A copy of the medical examination report of the respondent No. 3 undertaken by a panel of doctors appointed by the Medical Superintendent, Lok Nayak Hospital, New Delhi dated 01.07.2004, is on record wherein the Board had recommended that the respondent No. 3's speech and language functions were severely affected which had caused him 100% disability with 25% disability in the lower limbs. Learned counsel submits that the petitioner being the wife of the respondent No. 3, has been looking after him and attending to his daily needs over the years and he continues to remain in her care and custody. He states that the petitioner and the respondent No. 3 have two daughters; the elder one is already married and the younger one is studying law in Bangalore and it is the petitioner, who has been taking care of all the needs of her children and bearing all the expenses for their upbringing and education. It is in this background that the present application has been filed for permission to appoint the petitioner as the guardian ad litem of the respondent No. 3, on the ground that he is not capable of securing his affairs and her interest does not clash with that of her husband, in any manner.

3. To start with, it is considered essential to examine the scope of the relevant provision of the CPC, namely, Order XXXII entitled "Suits By or Against Minors And Persons of Unsound Mind" which lays down the procedure to be adopted in a suit filed by or against minors and persons of unsound mind. In the facts of the present case, Order XXXII Rule 15 CPC would be relevant for consideration and is extracted below :

"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 or being used."

4. On a bare reading of the aforesaid provision, it is quite evident that the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind and further, the court is entitled to apply the said provision to a person who is not adjudged of unsound mind but on inquiry, found to be incapable of protecting his interest while suing or being sued on account of suffering from any mental infirmity. The aforesaid provision casts a solemn duty on the court to conduct an enquiry to assess the ability of a party to the proceedings who it is stated, is incapable of protecting his interest before passing any orders on an application seeking appointment of a guardian ad litem.

5. To understand as to who can be termed mentally infirm, a reference to the definition of the word `infirm' which finds mention in several dictionaries is apposite. In Collins, the word `infirm' has been defined as `weak or ill and usually old'. The Concise Oxford Dictionary refers to the word `infirm' as `a person who is not physically strong, especially due to age'. In Black's Law Dictionary, the word `infirm' has been defined as `weak, feeble, lacking moral character or weak of health'. In Webster's New World Law Dictionary, the word, `infirm' has been defined as "Debility caused by ill health or advanced age". The American Heritage Dictionary of the English Language defines `infirmity' as "the condition of being infirm, often as associated with old age; weakness or frailty; the infirmity brought on by the disease".

6. There are several deci