REKHA MATHUR Vs. MANISH KHANNA

JUDGEMENT

(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.

(3.) Before proceeding further, I shall, at this stage itself, deal with the preliminary objection of the respondent with regard to the maintainability of the present appeal. The submission of the respondent is that the present appeal is not maintainable, as it is directed against a finding returned by the learned ADJ on the aspect of the respondent's impotence, and the appellant has already succeeded in the divorce petition under Section 13(1)(ia) of the HMA and the said decree has attained finality. It is argued that no appeal would lie against the said finding, as an appeal can be maintained only against the decree passed under HMA, as provided for under Section 28 of the HMA. The respondent has placed reliance on Ganga Bai Vs. Vijay Kumar, 1974 AIR(SC) 1126 which has been followed by this Court in Sanjay Chahal Vs. Shri Narendra Singh, 2007 97 DRJ 91, in support of the submission that the appeal is not maintainable.