Dissenting Opinion by
Montgomery, J.:I readily concur in that part of the opinion of the majority of this Court holding that insanity is a good defense to an action for divorce brought against a wife on the ground of adultery if it affirmatively appears from all of the evidence that at the time the act was committed she did not know the nature and consequences of same or have the ability to distinguish between right and wrong. However, I respectfully differ from the majority in recognizing the case of Mat chin v. Matchin, 6 Pa. 332, as authority for a contrary ruling, viz., that insanity on the part of a wife is not a recognized defense in a divorce action against her brought on the charge of adultery.
Although the subject of nymphomania and erotomania was discussed in the Matchin case, the issue of the wife’s insanity was not raised. The divorce in that case was granted upon depositions submitted by the complaining husband, which make no mention of the wife’s mental condition; and it is specifically stated on page 335, “The appellant gave no evidence, . . .” The only issue before the appellate court was that relating to the sufficiency and legality of the evidence, viz., whether the wife’s alleged confession of adultery was or was not supported by facts or circumstances to the extent that it constituted sufficient evidence for the granting of the divorce. The defense of insanity was not raised, and why it was even discussed by Chief Justice Gibson does not appear in the report of the *268case. The wording of the opinion in itself shows that the discussion of insanity was not justified as an issue under the evidence in the case (p. 336) : “Though we are bound to determine this appeal on the depositions sent up with the record, they contain enough to warrant a concurrence in the general belief that the appellant was actually insane; for no woman in her senses, however lost to shame, would apprize her husband’s kinswoman, by whom her confidence was certain to be betrayed, of an assignation with a paramour.” (Emphasis added) Is general belief or a concurrence in same sufficient to establish a basis for such an important ruling? I think it is not. The Matchin case has been crticized many times,1 as indicated in the majority opinion in this case, and I think rightfully so if it has been held out as authority for the principle just discussed.
However, it is interesting to note that what Chief Justice Gibson considered as concurring evidence of insanity in the Matchin case (the wife’s confession to a relative of her husband) is not regarded as indicative of any mental disorder in the present case, wherein the wife proclaimed publicly about her feelings toward her alleged paramour.
I am also in accord with the majority in holding that some mental disorders, although not sufficient to constitute a defense to the charge of adultery in divorce actions, may nevertheless be sufficient against a charge of indignities to the person or even cruel and barbarous treatment.
However, I am not in accord with the final decision of the majority in affirming the decree of the lower court in granting a divorce to the husband. The facts *269are well established that the appellant had mental and emotional difficulties which became progressively worse, compelling her confinement in the Embreeville State Hospital for approximately four months and that she was discharged in the custody of her husband as having made a satisfactory adjustment; that the diagnosis of her condition was “sociopathie personal trait disturbance, anti-social reaction,” and “schizophrenic reaction, paranoid type.” Dr. Ivins, a psychiatrist, testified that, with her type of condition, she could probably not be cured within a period of three or four months without further treatment. She received no additional treatment after she was discharged into the custody of her husband. Dr. Ivins testified further that generally speaking a schizophrenic paranoid type does not know the difference between right and wrong.
Under the circumstances just stated, the appellee, into whose hands the appellant had been released, instituted divorce proceedings against her within the one-year period. She was discharged into his custody as of May 30, 1955, for one year, this divorce action was entered in the Common Pleas Court of Delaware County at the 1956 June Term of court, and at no time was any effort made to comply with Pa. E. C. P. 2051 et seq., requiring the appointment of a guardian in litigation involving a habitual drunkard, a weak-minded person, or a person of unsound mind.
There can be little question about the appellant’s mental condition during this period of litigation. The majority opinion recognizes that she hired and fired numerous lawyers, that she was litigous, conducting or trying to conduct several different lawsuits simultaneously, and, as the majority opinion expressed it, “. . . her life was filled with contemptible and emotional, perhaps at times even hysterical conduct directed towards her husband, at least some of which may have *270been caused by mental illness.” Tbe lower court also was aware of her mental condition since it sustained ber defense of mental illness against tbe charge of indignities to tbe person of ber husband.
If this decree in divorce is permitted to stand, it would seem to me that tbe law has failed in its obligation to protect those who are not able adequately to protect themselves. This Court has said before that courts are under a duty to see that an incompetent is adequately represented in fact as well as in theory. Schwarzkopf v. Schwarzkopf, 176 Pa. Superior Ct. 441, 449, 107 A. 2d 610.
1 would, therefore, sustain this appeal, reverse tbe lower court awarding a decree of divorce, grant a new trial,2 and direct that a guardian be appointed to protect appellant and ber rights in tbe proceedings that would thereafter follow.
Consequently, I dissent.
1 Freedman, Law of Marriage and Divorce in Pennsylvania §210 (2d ed. 1957).
“(d) If, at any time after the conclusion of the trial, or after the entry of a finding, verdict or judgment against a party from whom relief is sought, the court shall find that such party was incompetent at the time of the entry of such finding, verdict or judgment and was not represented in the action by a guardian or a guardian ad litem, the court may vacate the finding, verdict or judgment and may enter an order in the nature of a procedendo.” Pa. R. O. P. 2056(d).