HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
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.
Smt. Bhagwani @ Bhanwari daughter of Shri Chunnilal, aged 49
years, by caste Jat, resident of Gokulpura, at present resident of
Chailasi, Tehsil Distt. Sikar.
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
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
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
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
(DINESH CHANDRA SOMANI)J.