SISIR KUMAR KUNDU Vs. SABITA RANI MANDAL

JUDGEMENT

(1.) As S.K. Chakravarti and S.K. Datta, JJ. composing a Division Bench were divided in their opinion on a point of construction of Section 25 (1) of the Hindu Marriage Act, 1955, the case was assigned to me for hearing on that point. The point ia stated by their Lordships as follows) "Whether a wife who got her marriage with her husband annulled by a decree of nullity on the ground of im-potency of the husband under Section 12 (1) (a) of the Hindu Marriage Act, is entitled to get any maintenance on her application under Section 25 of the Hindu Marriage Act, 1955. subsequent to the passing of the decree of nullity".

(2.) The point arises for decision in this way. On August 1, 1968 a decree of nullity was passed by the learned District Judge of 24-Parganas on a petition under Section 12 (1) (a) of the Hindu Marriage Act, 1955 presented by Sabita Rani Mondal, the opposite party in this Revisional Application, alleging that Sisir Kumar Kundu with whom she was married was impotent at the time of the marriage and continued to be so until the institution of the proceeding. On May 3, 1969 she applied to the Court of the District Judge under Section 25 (1) of the Hindu Marriage Act, 1955 for an order on the said Sisir Kumar Kundu to pay to her a monthly sum of Rs. 75/-for her maintenance and support Contesting this application Kundu raised a preliminary objection that an application under Section 25 (1) was not maintainable after a decree of nullity had been made. This objection was overruled by the court below, Kundu preferred an appeal to this Court from the order and also filed an alternative application in revision. S.K. Chakravarti and S.K. Datta, JJ. before whom the matter came up for hearing held that the appeal was not maintainable but entertained the revi-sional application taking different views on the point stated above. S.K. Chakravarti, J. was of opinion that Section 25 would not apply to a case where a decree of nullity has been passed declaring a marriage as null and void under Section 11 of the Act or where a marriage has been annulled under Section 12 and "would apply only to Section 13 and Sections 9 and 10". S.K. Datta. J. on the other hand took the view that "Section 25 is applicable to all decrees including decrees for nullity of marriages ....."

(3.) Section 25 (1) of the Hindu Marriage Act, 1955 is in these terms :