Pushpa Sathyanarayana, J.

The petitioner/wife, in a matrimonial dispute has preferred the above revision, aggrieved by the order refusing to frame a preliminary issue to decide the question of maintainability of HMOP No. 95 of 2015.

2. The facts of the case would run thus:

(i) The respondent/husband has filed the HMOP No. 95 of 2015 on the file of the Sub Court, Harur under Section 12(a)(b) of the Hindu Marriage Act, 1955 for a declaration declaring that the marriage dated 06.02.2012 that took place between the petitioner and the respondent as nullity and for other reliefs. The main allegation in the HMOP is that the marriage was not consummated and that the wife is suffering from psychiatric disorder.

(ii) In I.A. No.35 of 2016 filed by the wife, it is stated that the husband has filed the HMOP for annulment of the ground of psychiatric disorder and the said petition is not maintainable as she has been arrayed as a party, without showing any guardianship. Secondly, when it is not specifically alleged that the marriage was not consummated owing to the impotency of the petitioner/wife, the main HMOP has to be dismissed for want of cause of action.

(iii) The said application after contest, was dismissed by the Trial Judge.

(iv) Challenging the same, the present revision has been preferred.

3. Heard both sides.

4. From the records, it could be seen that originally the respondent/husband filed HMOP before the Sub Court, Dharmapuri; later it was transferred to Family Court at Dharmapuri and at present the same was transferred to Sub Court, Harur by virtue of orders passed by this Court. In the counter filed in the main HMOP, the allegation as set out in this interim application are absent. Therefore, it is an after thought to introduce such statements to protract the proceedings.

5. Admittedly, the wife is a graduate and was capable of understanding. However, she is alleged to be suffering from a kind of mental disorder, which makes her unfit to discharge the duties in the matrimonial home. This is the reason why guardianship was not specifically sought for. Secondly, it is stated that the HMOP is filed under Section 12(1)(c) of the Hindu Marriage Act, and it is typographically written as Section 12(1)(a), for which the amendment application was filed and the same is pending. It is also the case of the respondent/husband that the marriage was never consummated owing to the physical condition of the wife. Hence, the annulment of the marriage was sought for.

6. Both the above said issues raised by the respondent/husband are the main grounds on which, the annulling of the marriage is sought for. While so, the same cannot be tried as a preliminary issue. For trying a issue, as a preliminary issue the same must relate to the jurisdiction of the Court or the fact of the suit created by any law in force. Even, if the Court is of the opinion that the case or any part thereof can be disposed of on any issue of law only, even then it is not obligatory on the part of the Court to try the same as a preliminary issue. Power to try a preliminary issue is only discretionary because, the pure legal issue may turn to be the mixed question of law and fact. Subject to this power only, the Court has to decide all the issues at one and the same hearing. When trying the preliminary issue depends on a detailed evidence, which were almost identical to the main case, the Courts cannot take up the issue as a preliminary issue.

7. The issues with respect to the mental status of the petitioner/wife and the other issue with respect to the non consummation of marriage, both involve a factual evidence and it cannot be tried only as a pure question of law. Therefore, the above said issues cannot be tried as a preliminary issue without giving a finding to the other issues, which may arise for consideration in the main petition.

8. At this juncture, I would like to recollect the judgment of the Hon'ble Apex Court reported in (2006) 5 SCC 638 [Ramesh B. Desai and others