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Through: Mr. Rajesh Khanna & Mr. Kushal Raj Gupta, Advocates.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J. (OPEN COURT)

1. With the consent of learned counsel, I have heard their respective submissions in this appeal and proceed to dispose of the same at this stage.

2. The present matrimonial appeal is directed against the judgment dated 24.08.2012 passed by the learned ADJ-01 (East), Karkardooma Courts, Delhi in HMA No.450/2010. The appellant has preferred the aforesaid composite petition invoking Section 13(1)(ia) and Section 12(1)(a) of the Hindu Marriage Act, 1955 (HMA) against the respondent. The learned ADJ passed a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the HMA in favour of the appellant and, at the same time, the relief sought under Section 12(1)(a) of the HMA, on the ground of impotency of the husband, was rejected. The appellant wife is aggrieved, insofar as the petition was dismissed on the ground of impotency under Section 12(1)(a) of the HMA.

9. The aforesaid averments in clear terms allege impotence of the respondent, and allege that the male sex organ of the respondent was not developed - leading to the said state of affairs. Even the prayer clause, which has been extracted above, shows that under prayer (b) the petitioner appellant had sought nullity of the marriage on account of non- consummation of marriage under Section 12(1)(a) of the HMA. The use of the words "a decree of divorce thereby dissolving the marriage of the petitioner and the respondent ... ... ... ... ..." in prayer (b), can only be described as inept drafting of the petition by the counsel. However, the same does not take away from it, the substance of the prayer, which was to seek a decree of nullity of the marriage under Section 12(1)(a) of the HMA. It is, therefore, abundantly clear that the petitioner/ appellant instead of preferring two separate petitions - one under Section 12(1)(a) of the HMA, and the other under Section 13(1)(ia) of the HMA, preferred a composite petition for nullity on the ground of impotency of the respondent, as well as for divorce on the ground of the petitioner/ appellant being treated with cruelty by the respondent.

10. A perusal of the impugned judgment shows that the learned ADJ was also conscious of the fact that two separate and independent causes of action, i.e. one under Section 12(1)(a), and the other under Section 13(1)(ia) of the HMA had been clubbed in the same petition by the petitioner/ appellant. The learned ADJ has consciously dismissed the petition on the ground of impotence under Section 12(1)(a), while granting a decree of divorce under Section 13(1)(ia) of the HMA.

11. Reliance placed by learned counsel for the respondent in Ganga Bai (supra), which has been followed in Sanjay Chahal (supra), is misplaced. These are cases where some finding returned by the original Court was sought to be assailed in appeal, and the appeal was not directed against the judgment & decree deciding the proceeding one way or another. However, in the present case, the petition of the petitioner/ appellant under Section 12(1)(a) of the HMA has been rejected by the impugned judgment. Merely because the appellant/ petitioner sought to prefer a composite petition, and the petition for divorce has been allowed, it would not mean that so far as the dismissal of the petition under Section 12(1)(a) of the HMA is concerned, the appellant would be remediless.

(Emphasis supplied)

26. The submission of learned counsel for the respondent that the judgment dismissing the petition under Section 12(1)(a) of the HMA does not amount to a decree, is completely misplaced and is rejected.

27. There is no merit in this submission of learned counsel for the respondent that the present is an academic exercise. Merely because the appellant has already been granted divorce under Section 13(1)(ia) of the HMA and the marriage stands dissolved by a decree of divorce, it cannot be said that the marriage could not be annulled on the grounds given under Section 12(1)(a) of the HMA. As noticed hereinabove, the two provisions deal with separate causes of action, and are premised upon qualitatively and materially different fact situations. Even the relief granted is qualitatively and materially different inasmuch, as, by a decree of divorce, a valid marriage is dissolved; whereas a decree under Section 12(1)(a) declares the marriage to be a nullity, i.e. there was no marriage in the eyes of law. The status of the petitioner in the first case - post the decree, is that of a divorcee, whereas in the second case, it is that of an unmarried person. The said status has different connotations for the petitioner in the society, and the future marriage prospects of the petitioner hinge on the nature of relief granted by the Court, in case he/ she wishes to re-marry. A decree of annulment of the marriage under Section 12(1)(a) relates back to the date of marriage, since the marriage is held to be a nullity. On the other hand, the decree of divorce operates only prospectively. Thus, it is not merely an academic exercise when the petitioner/ appellant seeks a decree of nullity of marriage under Section 12(1)(a), even though a decree of divorce under Section 13(1)(ia) has already been granted.