HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
ORDER
S.B. Civil Miscellaneous Appeal No. 1144 / 2004
Daulat Singh son of Shri Bagwana Ram, aged 46 years, by caste
Jat, resident of Village Chailasi, at present resident of Sikar.
—-Appellant
Versus
Smt. Bhagwani @ Bhanwari daughter of Shri Chunnilal, aged 49
years, by caste Jat, resident of Gokulpura, at present resident of
Chailasi, Tehsil Distt. Sikar.
—-Respondent

__
For Appellant(s) : Mr. M. M. Ranjan, Sr. Advocate with
Ms. Nidhi Mishra, Adv.

For Respondent(s) : Mr. Amit Singh Shekhawat, Adv.
__
HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date of Order :- 06/09/2017

The instant appeal under Section 28 of the Hindu Marriage

Act, 1955 has been preferred by the petitioner/appellant against

the order dated 01/05/2004 passed by learned District Judge,

Sikar (hereinafter referred as “the learned trial Court”) on an

application under Order 7 Rule 11 of CPC filed by the respondent,

whereby the learned trial Court allowed the application and

rejected the petition for dissolution of marriage filed by the

petitioner.

Brief facts necessary for disposal of this appeal are that the

petitioner filed a petition under Section 13 of the Hindu Marriage

Act, 1955 for dissolution of marriage on the ground of desertion

and cruelty alleging therein that the respondent is claiming herself

to be wife of the petitioner. It is also stated that the petition

under Section 125 of CrPC has been submitted by the respondent

in the Court of Judicial Magistrate, Sikar with the averment that

the said marriage was solemnized before 26 years ago prior to

filing of the petition under Section 125 of CrPC and that a baby

Rajkumar was born. The petitioner further alleged that he denied

the solemnization of marriage with the respondent and he never

considered the respondent to be his wife. The respondent filed

reply to the petition and denied the contents of the petition

asserting that she is legally wedded wife of the petitioner. On

basis of the pleadings of the parties, the learned trial Court

framed as many as five issues on 13/08/2002. The respondent

submitted an application under Order 7 Rule 11 of CPC alleging

therein that since the petitioner did not consider the respondent

as wife, as such the petition under Section 13 of the Hindu

Marriage Act is not maintainable. The petitioner contested the

application by submitting reply thereto.

After hearing learned counsel for the parties, the learned

trial Court allowed the application and rejected the petition vide

impugned order dated 01/05/2004 holding that the petition does

not disclose the cause of action.

Feeling aggrieved with the order and decree dated

01/05/2004 passed by the learned trial Court, the

petitioner/appellant has preferred this appeal.

Mr. M. M. Ranjan, Sr. Advocate assisted by Ms. Nidhi Mishra,

Advocate contended that in the petition itself, it was mentioned by

the petitioner that though the marriage was not solemnized, even

if it is assumed that the marriage was solemnized, the appellant is

entitled for decree of divorce. Learned counsel also contended

that the appellant could take alternative plea in his petition.

Learned counsel for the appellant also contended that the

interest of filing of divorce petition arose since the orders under

Section 125 of CrPC were passed treating the appellant as

husband of the respondent when there was adjudication. Only

thereafter, the divorce petition was submitted, as such the petition

is maintainable in view of the order passed in petition under

Section 125 of CrPC and also on the basis of admission of the

respondent.

Learned counsel for the appellant further contended that

because issues were framed by the learned trial Court and the

matter of relationship of husband and wife can be decided only

after recording evidence of both the parties. As such, the

approach of the learned trial Court was perverse and prayed to

accept the appeal, to quash and set aside the impugned order and

decree passed by the learned trial Court and to remand the matter

with direction to decide the petition for dissolution of marriage

after recording evidence of both the parties.

In support of his contentions, learned counsel for the

appellant placed reliance on Prabir Chandra Chatterjee versus

Kaveri Guha Chatterjee reported in AIR 1987 Calcutta 191.

Per contra, Mr. Amit Singh Shekhawat, learned counsel for

the respondent strongly opposed the contentions of learned

counsel for the appellant and supported the impugned order and

decree passed by the learned trial Court and prayed to dismiss the

appeal being devoid of substance.

It is settled position of law that the relevant facts which need

to be taken into consideration for deciding an application under

Order 7 Rule 11 (a) and (d) of CPC, are the averments made in

the plaint, and the pleas taken by the defendant in the written

statement would be wholly irrelevant at that place and the

disputed questions cannot be decided at the time of considering

an application filed under Order 7 Rule 11 of CPC.

The appellant in his petition under Section 13 of the Act, has

mentioned that the marriage was not solemnized with the

respondent and he never considered her to be his wife.

Section 13 of the Hindu Marriage Act, 1955 provides that any

marriage solemnized, whether before or after the commencement

of this Act, may, on a petition presented by either the husband or

the wife, be dissolved by a decree of divorce on any of the

grounds set forth in the Section. As such, solemnization of

marriage is the essential condition to maintain a petition under

Section 13 of the Act of 1955. A petition under Section 13 of the

Act can be presented by either the husband or wife and not by any

other person. Because the appellant filed the petition under

Section 13 of the Act stating therein that the marriage was never

solemnized with the respondent and he never considered the

respondent to be his wife, therefore, the petition does not disclose

a cause of action to file the petition for dissolution of marriage

under Section 13 of the Act and the petition appears from the

averments made therein to the barred by law.

The pleas taken by the petitioner/appellant in the petition for

dissolution of marriage are inconsistent and contradictory, as

such, can not be termed as alternative pleas. Thus, the

contentions of learned counsel for the appellant in this regard, can

not be accepted.

It is also pertinent to mention that the appellant did not

produce copy of the orders passed by the Court under Section 125

of CrPC neither before the learned trial Court nor in this appeal to

show that the order of payment of maintenance was passed in

favour of the respondent treating her to be legally wedded wife of

the appellant. Therefore, there is no material with the petition

filed by the appellant which discloses the cause of action to file the

petition for dissolution of marriage under Section 13 of the Hindu

Marriage Act.

In Prabir Chandra Chatterjee versus Kaveri Guha

Chatterjee (supra), marriage of the parties to the case was

solemnized according to Hindu rites and thereafter the marriage

was registered under Chapter-III of the Special Marriage Act. The

wife filed the petition for divorce labelled as one both under

Section 13 of the Hindu Marriage Act and 27 of the Special

Marriage Act. The husband filed an application under Order 7 Rule

11 of CPC for rejection of the petition on the ground that such

amalgamation of the sections of the Hindu Marriage Act as well as

the Special Marriage Act in the heading of the petition, does not

disclose a cause of action. Hon’ble Calcutta High Court observed

that the petition apparently discloses a cause of action for divorce

on the grounds of acts of cruelty, adultery etc. It was also

observed and held that labelling the petition under Section 27 of

the Special Marriage Act as one under Section 13 of the Hindu

Marriage Act also was useless suplusage, which, at any rate,

cannot affect the maintainability or the merit of the petition for

divorce, nor the jurisdiction of the Court to grant divorce. In the

present case the petitioner/appellant has come out with the case

that the marriage was not solemnized and he never considered

the respondent to be his wife. Due to difference in facts and

circumstances of the case, the law laid down by Hon’ble Calcutta

High Court in this case, is not of much help to the appellant.

In view of above and looking to the reasons recorded by

learned trial Court in support of the impugned order and pleadings

taken by the appellant, I do not find any illegality or impropriety in

the impugned order, which call for our interference. I find no

substance in the appeal.

Consequently, the appeal is dismissed with no order as to

costs.

(DINESH CHANDRA SOMANI)J.

Manish/