JUDGMENT

The Civil Miscellaneous Second Appeal is filed to set aside the decree and judgment in C.M.A. No.6 of 2015 dated 04.10.2016, on the file of the Principal District Judge, Chengalpet, confirming the decree and judgment in H.M.O.P. No.346 of 2010 dated 21.10.2011, on the file of the Subordinate Judge, Tambaram, by allowing the above CMSA.

2. The appellant is husband and the respondent is wife. The wife had filed a petition for divorce in HMOP No.346 of 2010, on the file of the Subordinate Court, Tambaram, on the ground of impotency of the appellant/husband and the learned Judge in which, ex-parte order was passed.

3. Challenging same, the husband filed an appeal in CMA No.6 of

2015, on the file of the Principal District Judge, Chengalpet. The learned Judge, after hearing the arguments, dismissed the appeal and confirmed the order and decree passed by the Subordinate Judge.

4. Aggrieved over the same, the husband has filed the present Second Appeal, raising the following substantial questions of law.

1. Whether the appellate Court erred in law in dismissing the CMA, challenging the exparte order of the divorce petition on the ground of impotency?

2. Is the appellate Court right in law in dismissing the appeal by holding that the appellant has not filed the counter in the HMOP challenging the petition for divorce but failed to note that the appellant filed counter to the other IA Nos.125, 126 and 127 of 2011 in HMOP NO.346 of 2011 to prove that the appellant opposing the petition filed by the respondent on the ground of impotency?

3. Whether the petition for divorce on the ground of impotency, medical examination is necessary to decide the issue, if no medical examination done, can the petition be allowed on the ground of impotency exparte?

4. Is the appellate Court right in law even though the respondent was set exparte, the court should consider the entire pleading and evidence before passing final orders in the HMOP filed for divorce come to the conclusion whether the HMOP petition is maintainable or not?

5. Is the appellate Court right in law coming to the conclusion that the appellant has not filed application to set aside the ex-parte judgment when it is challenged by filing an appeal?

6. Is the appellate Court right in law in dismissing the appeal having come to the conclusion that the decree is defective, that the petition filed on the ground of impotency under 12(1)(a) of the Hindu Marriages Act, but decreed for divorce on the ground of cruelty?

5. Though the matter is pending from the year 2017, the same is pending without even formulating the substantial question of law.

6. The learned counsel for the appellant/husband submitted that the marriage between the appellant and the respondent was solemnized on 27.11.2009. Along with the petition for divorce, the respondent/wife also filed three interlocutory applications viz., I.A.No.125 of 2011 (for payment of monthly maintenance), I.A. No.126 of 2011 (for litigation expenses of Rs.10,000/-) and I.A.No.127/2011 (for return of articles). Though the appellant/husband participated in the proceedings in IA's, he was set ex-parte in the main O.P. The learned counsel submitted that the respondent/wife had not established her case. However, the Courts below failed to property appreciate the evidence and materials and passed the ex-parte order. The respondent alone was examined and 12 documents were marked at the time of examining her. Since the appellant/husband was set ex-parte, he was not in a position to file his medial certificate issued by Urology and infertility Clinic by Dr.Devenanthan and Dr.Vikram Sreedharan on 28.05.2010 and even before filing of the divorce petition by the respondent/wife, the said certificate was received by One Krishnan, the uncle of the respondent/wife. The marriage between the appellant and the respondent was an arranged marriage and the same was registered on 08.12.2009. The appellant/husband lived with the respondent/wife only for 15 days. Therefore, t