Judgment:
ORDER
P. Sathasivam, J.
1. Husband is the appellant. Respondent - wife filed H.M.O.P.NO.94 of 1994 on the file of Family Court, Madurai for divorce under Section 12 and 13 of the Hindu Marriage Act, 1955. By order dated 14.3.1997 the Family Court granted a decree for divorce and also directed the husband to pay a sun of Rs. 1,000.00 towards maintenance from the date of petition and Rs.2,500.00 towards litigation expenses. Aggrieved by the said order, the husband has preferred the above appeal under Section 19 of the Family Courts Act, 1984.
2. The facts which are necessary for the disposal of the appeal are briefly stated hereunder:
According to the respondent - wife she was given in marriage to the appellant herein on 10.6.1982 and the same was celebrated at Pushpamandapam, New Colony, Madurai. She was taken to her husband's house at Usilampatti. She lived there for about three months. For the three months their marriage was not consummated. The husband did not have any sexual relationship with her during the three months when she stayed in his house. Thereafter, he took her to her mother's house at Madurai on 4.9.1982 agreeing to take her back after six months. Even after expiry of six months he did not take her to his house at Usilampatti. At her instance her brother approached him to take her back, but all the efforts have been failed. She had been deserted by her husband without any valid reason from 4.9.1982, she filed the said petition for dissolution of marriage. She also claimed return of articles such as gold jewels etc., The marriage was not consummated as her husband was incompetent to consummate the marriage.
3. The appellant/husband has filed a counter statement stating that the marriage was arranged by the elders. Even on the first-night itself he was not allowed to touch her stating that the marriage was conducted against her wish. In view of her attitude he took her to her mother's house. He denied all other allegations. The petition for divorce has been filed only to extract money and jewels from him.
4. The respondent / wife has also filed I.A.No.133 of 1995 for amending her petition wherein she has prayed to include para 6-A saying that she did not have sexual intercourse during the stay with him since he is impotent. The husband has also filed additional counter statement denying all the allegations made in the said petition.
5. Before the Court below wife has been examined as P.W.1 and marked Exs.A.1 to, A.3 in support of her claim. The husband has been examined as R.W.1 and also marked Exs.B.1 and B.2 in support of his defence. C.Ws.1 and 2 were examined as Court witnesses and Exs.C.1 and C.2 were also marked as Court exhibits. The Court below after framing necessary points for consideration and after accepting the case of the wife, allowed her petition and granted decree for divorce. In the same order the Court has directed the husband to pay a sum of Rs. 1,000.00 towards maintenance from the date of petition as well as Rs.2,500.00 towards litigation expenses, hence the present appeal by the husband.
6. We have heard the learned counsel for appellant as well as respondent.
7. The point for consideration is whether the respondent /wife is entitled to a decree of divorce as well as maintenance pendents life and litigation expenses? The respondent herein has filed H.M.O.P.No.94 of 1994 before the Family Court at Madurai for divorce under Section 12 and 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' ). It is not disputed that the marriage took place on 10.6.1982 at Madurai. It is also not disputed that both the spouse were living in the house of the husband for about three months. It is the specific case of the wife that though she lived with her husband for three months, the marriage was not consummated. It is also specifically stated that her husband did not have sexual intercourse with her when she stayed in his home. He was evading one or other pretext, since he is impotent. He never showed any sexual inclination. Even though he left his wife on 4.9.1982 in her mother's house agreeing to take back her after six months, according to the wife he did not take her back to his home. She continues to be in her mother's house. With reference to the said averments, the appellant herein has filed an objection as well as additional statement of objection disputing various averments made by his wife. In his objection it is stated that it was she who refused to cohabit and she even threatened that if he insist for cohabitation she will commit suicide by taking poison or by self-immolation. She has not showed any respect to the advise made by the panchayathars.
8. Apart from the, said pleadings, the wife as P.W.1 reiterated that the marriage has not been consummated. In his evidence as R.W.1, the appellant husband denied all her statements. In view of the stand taken by both the parties, the husband and wife were sent for medical checkup. One Dr.P, Thiyagarajan, Professor in Madurai Medical. College was examined as C.W.1. As per the Court's direction it was he, who examined the husband on 10.11.1994. In his evidence as C.W.1 has deposed before the Court that on 10.11.1994 he along with another. Doctor viz... Dr. V. S. Mahendran, examined Mr. Balakrishnan, appellant herein. After examination of his male organ they opined that he cannot have sexual intercourse and find that he is impotent. In this regard it is relevant to note the oral evidence of C.W.1. ...
The certificate issued by him has been marked as Ex.C.1. The perusal of the evidence, of C.W.1 and certificate Ex.C.1 clearly show that the appellant herein is impotent.
9. On the other hand, one Dr. A. Shantha, who examined the wife was examined before the Court as C.W.2. She deposed thus,
Her certificate has been marked as Ex.C.2. It is clear from the oral evidence of C.W.2 and certificate Ex.C.2 that the respondent herein - wife is physicallyand mentally normal. In Ex.C.2 the Doctor - C.W.2 has made a specific note that 'Hymen Septate, no evidence of tearing.' The evidence of C.W.2 as well as Ex.C.2 support the case of wife viz., that there had been no cohabitation.
10. In the light of the medical evidence as seen from C.Ws.1 and 2 and Exs.C.1 and C.2 it is proved beyond doubt that the appellant/husband is impotent. We have already stated that in the petition the wife has claimed for nullity of marriage or in the alternative for divorce on the ground of non-consummation of marriage. The learned Family Court Judge in para 15 after holding that, inasmuch as the marriage was celebrated on 10.6.1982 and the wife has filed the present petition for divorce only on 11.7.1992 i.e., 10 years after the marriage, came to a conclusion that nullity of marriage cannot be awarded as it is barred by the provisions of the Act. After saying so, inasmuch as she had proved her case that the' marriage is not consummated and as per experts evidence she continued to be virgin and her husband is impotent, granted a decree for divorce.
11. Section 11 and 12 of the Hindu Marriage Act, 1955' speaks about void and voidable marriages respectively.
' Section 11: Void Marriages. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.'
' Section 12: Voidable marriages.- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotence of the respondents; or;.
(b) ..... (c)..... (d) .....
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-
(a) on the' ground specified in clause (c) of sub-section (1), shall be entertained if -
(i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of-sub-section (1) shall be entertained unless the court is satisfied,
(i) that the petitioner was at the time of the marriage ignorant of: the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement with one year from the date of the marriage; and
(iii) that martial intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner 'of the existence of (the said ground).':
On the basis of sub-clause (a) of sub-section (2) of Section 12 the Family Court has held that marriage cannot be annulled in view of the limitation prescribed therein. After perusing the relevant provisions, particularly Section 12 we are unable to accept the conclusion arrived at by the learned Judge. The limitation prescribed in sub-section (2) is applicable only for the grounds specified in clause (c) and (d) of sub-section (1). In our case medical evidence amply show that the husband is impotent and the marriage between the appellant and respondent herein had not been consummated. The wife has proved her case through expert evidence C.W.2 and Ex.C.2 that she still continues to be virgin. In such a circumstance and in view of sub-clause (a) of sub-section (1) of Section 12, the marriage between the appellant and respondent herein is voidable marriage and the same can be annulled by a decree of nullity.
12. Regarding the interim maintenance of Rs. 1,000.00 per month from the date of petition and Rs.2,500.00 towards litigation expenses no serious arguments have been advanced, hence we hereby confirm the same. Even otherwise, on the basis of proper application viz. , I.A.No.87 of 1994, the respondent herein - wife has prayed for interim maintenance as well as litigation expenses. Considering the fact that the husband is having agricultural lands and also running a biscuit company the Court below has granted the same.
13. Mr. Subbiah, learned counsel appearing for the respondent - wife has prayed for permanent alimony and maintenance. Though he has not filed separate application claiming permanent alimony and maintenance, by drawing our attention to Section 25 of the Act prayed for appropriate direction in this appeal. In order to appreciate his contention, it is useful to refer Section 25 of the Act.
' Section 25. Permanent alimony and maintenance:- (1). Any court exercising jurisdiction under this Act may, at the lime of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the appellant for her or his maintenance and support such gross sum or such monthly or periodical sum for a team not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant (the conduct of the parties and other circumstances of the case), it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.'
(2) .... (3) .... '
Admittedly, the wife has not filed an application claiming permanent alimony and maintenance as per Section 25 of the Act. No doubt, during the pendency of the proceedings before the Family Court she filed I.A.No.87 of 1994claiming interim maintenance as well as litigation expenses and the said application has been allowed by the Family Court. In the light of the language used in Section 25 of the Act there is no dispute that it would be open to either party to claim permanent alimony and maintenance even before this Court. In this regard Mr. Subbiah, learned counsel appearing for the respondent has pressed into service the following conclusion of their Lordships in a case reported in State of Punjab v. Bakshish Singh, .
'10. The powers of the appellate Court are also indicated in Section 107 of the Code of Civil Procedure which provides that the appellate Court shall have the same powers as are conferred on the original Court. If the trial Court could dispose of a case finally, the appellate Court could also, by virtue of clause (a) of sub-section (1) of Section 108, determine a case finally. In R.S. Lala Praduman Kumar v. Virendra Goyal, , it was held that the appellate Court could even relieve against forfeiture in a case under the Transfer of Property Act. This too was based on the principle that the power which was available to the original Court, could be exercised by the appellate Court also.'
It is clear from Section 107 of the Code of Civil Procedure as well as the language used in Section 25 of the Act, the appellate Court viz., this Court has same powers as are conferred on the original Court. On this aspect we are in agreement with the contention raised by Mr. Subbiah. However we make it clear that in order to claim permanent alimony and maintenance it is for the person concerned to file an appropriate application highlighting the details of his or her own income, property etc., On the basis of those particulars, considering the conduct of the parties and other circumstances of the case, it would be open to the Court of first instance or the appellate Court to pass an appropriate order under Section 25 of the Act. Except a faint request which was made at the time of disposal of the appeal, admittedly the wife -respondent herein has not filed any application highlighting all those particulars in this appeal. No doubt, Mr. Subbiah by drawing our attention to the averments made in H.M.O.P.No.94 of 1994 would contend that based on those particulars this Court can pass an order of permanent alimony. For the above said reasons, more particularly in the absence of an application as mentioned in Section 25 of the Act, we are unable to accede to the request of the learned counsel for respondent. It is clear that claim under Section 25 of the Act has to be made on an application furnishing all details regarding his or her own income or other property. Further an opportunity to be given to the otherside to putforth his/her defence. Hence, we hold that only on application an order has to be passed by the Court granting 'permanent alimony' and 'maintenance' under Section 25 of the Act. Accordingly in the absence of proper application we reject the claim made by the learned counsel for respondent - wife.
14. In the light of what is stated above, we do not find any merit in the appeal; accordingly the same is dismissed. However there shall be no order as to costs.