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2015 Supreme(Del) 1434

IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
Rekha Mathur - Appellant
Versus
Manish Khanna - Respondent
Mat.App.6/2013
Decided on : 16.07.2015

Advocate Appeared:
Mr. Puneet Agarwal & Mr. Anshuman Ashok, Advocates.
Mr. Rajesh Khanna & Mr. Kushal Raj Gupta, Advocates.

Headnote:

Hindu Marriage Act, 1955 - Section 12(1)(a) & 13(1)(ia) - Divorce - Impotency of husband - Ground of impotence of the respondent, which has resulted in the marriage not being consummated, is an absolute ground, which enables the petitioner to avoid the marriage and seek a decree of nullity - No submission was advanced on behalf of the respondent that he is willing to undergo medical examination by the Medical Board. All these circumstances clearly raise an adverse inference against the respondent and lead to the conclusion, on the basis of preponderance of probabilities, that the allegations made by the appellant with regard to the non-consummation of marriage on account of impotence of the respondent are true - Merely because the appellant has already been granted divorce under Section 13(1)(ia) of the HMA and the marriage stands dissolved by a decree of divorce, it cannot be said that the marriage could not be annulled on the grounds given under Section 12(1)(a) - Decree of nullity of the marriage between the appellant and the respondent is passed under Section 12(1)(a) on the ground that the marriage has not been consummated on account of the impotence of the respondent - Appeal allowed.

Judgment

Vipin Sanghi, J.

1. With the consent of learned counsel, I have heard their respective submissions in this appeal and proceed to dispose of the same at this stage.

2. The present matrimonial appeal is directed against the judgment dated 24.08.2012 passed by the learned ADJ-01 (East), Karkardooma Courts, Delhi in HMA No.450/2010. The appellant has preferred the aforesaid composite petition invoking Section 13(1)(ia) and Section 12(1)(a) of the Hindu Marriage Act, 1955 (HMA) against the respondent. The learned ADJ passed a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the HMA in favour of the appellant and, at the same time, the relief sought under Section 12(1)(a) of the HMA, on the ground of impotency of the husband, was rejected. The appellant wife is aggrieved, insofar as the petition was dismissed on the ground of impotency under Section 12(1)(a) of the HMA.

3. Before proceeding further, I shall, at this stage itself, deal with the preliminary objection of the respondent with regard to the maintainability of the present appeal. The submission of the respondent is that the present appeal is not maintainable, as it is directed against a finding returned by the learned ADJ on the aspect of the respondent’s impotence, and the appellant has already succeeded in the divorce petition under Section 13(1)(ia) of the HMA and the said decree has attained finality. It is argued that no appeal would lie against the said finding, as an appeal can be maintained only against the decree passed under HMA, as provided for under Section 28 of the HMA. The respondent has placed reliance on Ganga Bai Vs.Vijay Kumar, 1974 AIR (SC) 1126, which has been followed by this Court in Sanjay Chahal Vs. Shri Narendra Singh, (2007) 97 DRJ 91, in support of the submission that the appeal is not maintainable.

4. Learned counsel for the respondent has further submitted that a perusal of the original petition preferred by the appellant would show that she had only sought a decree of divorce, and she had not sought a decree of nullity. The title of the petition reads “Petition under Section 13(1)(ia) read with Section 12(1)(a) of the Hindu Marriage Act for divorce on the ground of cruelty”. It is submitted that “nullity” was not mentioned as a ground in the heading of the petition.

5. It is further submitted that even the prayer made in the petition did not seek a decree of nullity on the ground that the marriage is voidable at the instance of the petitioner, on account of the impotence of the respondent. The prayers made in the petition are as follows:-

“In the light of the above facts and circumstances, it is most respectively prayed that this Hon’ble may be pleased to:

a) Pass a decree of divorce thereby dissolving the marriage of the petitioner and the respondent, in favour of the petitioner and against the respondent;

b) Pass a decree of divorce thereby dissolving the marriage of the petitioner and the respondent, on the ground of nullity of marriage and non consummation of marriage under Section 12(1)(a) of the Hindu Marriage Act;

c) Award the costs of the proceedings in favour of the petitioner and against the respondent;”

6. It is argued that a prayer, which was not made before the learned ADJ, cannot now be sought before this Court in the first appeal.

7. Having heard learned counsel, I do not find merit in the aforesaid preliminary objection of the respondent. It is well-settled that the pleadings of the parties have to be read in their entirety, and cannot be read in parts. In Ponnala Lakshmaiah v. Kommuri Pratap Reddy and Ors., (2012) 7 SCC 788, the Supreme Court observed as follows:

“5. … … … … The averments made in the plaint or petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the Plaintiff.

6. This Court has in Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511 given a timely reminder of the principle in the following words:

“33. We











































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