Non-consummation of marriage does not affect the status of parties as husband and wife, and Section 25 of the Hindu Marriage Act allows for a claim of permanent alimony even after divorce.

S.VIMALA, J.

1. The Civil Miscellaneous Appeal is filed challenging the order passed by the I Additional Family Court at Chennai, in I.A.2623 of 2005 in O.P.No.2370 of 2004, dated 16.6.2009.

2. The husband filed the petition for divorce against his wife on the ground of cruelty.

3. The wife filed a petition seeking permanent alimony of Rs.5,00,000/- in I.A.2623 of 2005.

4. The Family Court granted the decree for divorce in favour of the husband. The petition filed by the wife for permanent alimony was allowed in part and the husband was directed to pay a sum of Rs.3,50,000/- to the wife as permanent alimony.

5. As against the order of granting a decree for divorce, the wife has not chosen to file any appeal. It was represented by the learned counsel for the appellant that the wife did not want to join the husband and therefore, she has not chosen to file any appeal, even though, the wife has got a bright chance of succeeding in the appeal. Therefore, the decree of divorce passed by the Family Court has become final.

6. The husband has challenged the order of the Family Court, only with regard to the order passed in I.A.No.2623 of 2005 directing the husband to pay a sum of Rs.3,50,000/- as permanent alimony under the following grounds:

a) When it is consistently alleged that the marriage was not consummated, the so-called wife cannot claim the status as the wife and, therefore, the petition is not maintainable.

b) The Trial Court has given a finding that the wife is guilty of cruelty, then the wife is not eligible for the grant of permanent alimony.

c) No materials have been produced with regard to the income of the husband and, therefore, there is no basic material for the award of permanent alimony.

d) The Trial Court has not given the basis to arrive at the quantum of Rs.3,50,000/-as permanent alimony.

7. In view of the grounds raised, now the short point to be considered in this appeal is whether the order for permanent alimony passed by the Family Court is just and reasonable.

7.1. The first contention of the learned counsel for the appellant is that when the wife herself has admitted that the marriage has not been consummated then, she has no status “as wife” and, therefore, the petition is not maintainable.

7.2. The second contention is that even assuming that the wife has the status as wife and as the marriage has been dissolved on the ground of cruelty against the wife then, the wife is not entitled to make a claim for maintenance.

These two contentions are untenable, because of the following reasons:-

7.3. There is no Law which rules that when the marriage is not consummated the parties to the marriage would not acquire/retain the status as husband/wife.

7.4. The husband himself has filed a petition for divorce, which indicates that only accepting the status of the respondent as wife such a petition could have been filed. When the husband himself has admitted the status of the respondent as wife, then it is unfair to contend that the respondent has no status as wife and therefore, the petition is not maintainable.

7.5. Even though the wife has not chosen to prefer any appeal against the order granting divorce a mere perusal of the order of divorce go to show that the findings are perverse and there is no justification for the grant of divorce on the ground of cruelty.

7.6. The perusal of the Judgment of the Family Court reveals that the marriage between the petitioner and the respondent is an admitted fact. There is an observation in the judgment that the sexual relationship between the petitioner and the respondent was not happy. There is an observation that the deficiency was only on the part of the petitioner-husband. Relying upon Ex.R1, which is a letter written by the brother of the wife, the trial court has given a finding that the wife was sent out of the home by the husband. But the trial court has strangely given a finding that the non-living of the wife with her husband amounts to cruelty