Hon’ble S.U. Khan. J.—Heard learned Counsel for the appellants as well as learned Counsel for the respondent, who has appeared through caveat.

2. This appeal is directed against judgment and decree dated 27.11.2007 passed by A.D.J. Court No. 2, Ghazipur in matrimonial case No. 84 of 2003, Ratanjay Pradhan v. Smt. Suman and others. Through the impugned judgment, marriage in between plaintiff respondent and appellant No. 2/defendant No. 1 has been annulled and declared void mainly under Section 13(1)(iii) of Hindu Marriage Act, which is quoted below :

“13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) & (ii) not relevant.

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or]”

3. The Court below held that the wife Smt. Suman is suffering from some mental dis-order in the form of schizophrenia.

4. The first dispute, which cropped up at the initial stage of the hearing, was regarding present residence/custody of the wife. On the very first date, it was stated by learned Counsel for the husband respondent that Smt. Suman-the wife was in the custody of her uncle appellant No. 1, which was disputed by learned Counsel for appellants. Accordingly, on 16.1.2008, I directed S.S.P., Ghazipur to make enquiry and inform the Court regarding present residence/custody of the lady. However, afterwards learned Counsel for the husband respondent stated that under some confusion he had given statement on 16.1.2008 and the fact is that the lady is still with husband and as the mental condition of the lady is not good, hence unless appellant No. 1 comes to take her, she can’t be turned out from the house. Learned Counsel for the appellant since day one was asserting that the lady was still with the husband respondent.

5. The second question is regarding maintainability of appeal. In the divorce petition, the wife Smt. Suman was sued through her uncle Sri Uma Shanker Rai (deceased), who has been impleaded as appellant No. 3. A deceased ought not to have been impleaded as appellant. Appellant No. 2 is described as Smt. Suman, however Vakalatnama does not bear her signatures and learned Counsel for the appellant has stated that the husband, in whose custody Smt. Suman is, did not allow appellant No. 1 to obtain her signatures on the Vakalatnama. However, I do not propose to decide the question as to whether the appeal is maintainable or not. I propose to decide the appeal on merit.

6. The marriage was solemnized on 8.6.2003 and marriage petition was filed within two or three weeks. The Court below through order dated 13.8.2004 appointed appellant No. 1 as guardian of the wife.

7. The husband pleaded that since the day one, the behaviour of the wife was not normal and she appeared to be abnormal and he got her examined and treated by various doctors, who were expert in treating the patients of mental dis-order. The Presiding Officer of the Court below summoned the lady and examined her. She only gave her name and father’s name. Thereafter, when the names of her mother, husband and father-in-law were asked, she kept quite. She also kept quite when her edu