JUDGMENT

S. Panda, J. Since both the appeals arise out of a common order, they were heard together and are being disposed of by this common judgment.

2. Challenge has been made in these appeals by the wife to the order dated 15.7.2011 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding Nos. 251 of 2003 and 204 of 2005.

3. The husband filed Civil Proceeding No.251 of 2003 under Section 12(1) (c) of the Hindu Marriage Act, 1955 (in short, “the Act”) to declare the marriage with wife as void and in the alternative to grant a decree of divorce and permanently restrain her from claiming maintenance from him. The wife filed Civil Proceeding No.204 of 2005 under Section 9 of the Act for restitution of conjugal rights. The court below dismissed the application filed by the wife for restitution of conjugal rights on contest without cost and allowed the application filed by the husband on contest without cost and dissolved the marriage by a decree of divorce subject to payment of cost of Rs.3 lakhs as permanent alimony to the wife within three months from the date of the order.

4. Learned counsel for the appellant submits that C.P No.251 of 2003 was filed by the husband under Section 12(1)(c) read with Section 13(1)(i-a) of the Act. During pendency of the proceeding, by way of amendment, the relief claimed in the proceeding was only under Section 12(1)(c) of the Act and his prayer to declare the marriage as void on the plea of fraud, which could not be proved by him during trial. Therefore, the judgment and decree is liable to be reversed. The court below illegally granted relief under Section 13(1)(i-a) of the Act specifically when the said relief was deleted from the pleadings of the parties. The finding of the court below, that there is no chance of reunion without taking into consideration the application filed by the wife for restitution of conjugal rights, is illegal as the court below neither averred regarding desertion of wife nor proved the said facts. Therefore, the said finding is based on surmises and conjectures and not sustainable in the eye of law. It was further contended that ICC No.200 of 2006 was filed by the wife after threatening given by her to implicate the husband, his family members and relatives in a false case of torture and demand of dowry and the fraud practiced by the wife suppressing the facts that due to hormonal imbalance, moustache and beard were appeared on her from 1996 and on totality of the said facts, one can conclude that the husband has been subjected to cruelty by the wife and due to such harassment and mental agony practically there can be no reunion and therefore, the order passed by the court below granting divorce in favour of the husband is liable to be reversed. The application filed by the wife for restitution of conjugal rights should have been passed by the court below in view of the medical report that she is medically fit to lead a normal conjugal life. In support of his contention, he cited a decision of the Madhya Pradesh High Court in the case of Shrikant v. Smt. Saroj reported in AIR 2001 Madhya Pradesh 94 and submits that in absence of any evidence to grant relief under Section 13 of the Act, the court below has exercised its power illegally in the absence of any evidence on record. Hence, the decree is liable to be set aside. He also cited a decision of the apex Court in the case of Dr.N.G.Dastane v. Mrs. S.Dastane reported in AIR 1975 SC 1534 and the decision of the Punjab & Haryana High Court in the case of Krishan Kumar v. Smt. Nidhi Arora reported in AIR 2010 (NOC) 441 (P&H) wherein it has been held that in absence of positive pleading and evidence, the court has lack jurisdiction to grant such relief.

5. Learned counsel appearing for the respondent submitted that learned Judge, Family Court dissolved the marriage by a decree of divorce subject to payment of Rs.3 lakhs on the ground of admission by the wife that the father of the wife refused to send her to