Research › Search › Judgment

Andhra High Court · body

2013 DIGILAW 383 (AP)

Reemana Kaushik v. Shobhit Kaushik

2013-06-03

L.NARASIMHA REDDY, S.V.BHATT

body2013
JUDGMENT L. NARASIMHA REDDY, J. FCA No. 149 of 2013 is filed against the order, dated 10.7.2012 passed by the Family Court-cum-V Additional District & Sessions Judge, Visakhapatnam in IA No. 1871 of 2011 in FCOP No. 532 of 2011. The consequential order passed by the trial Court rejecting the F.C.O.P. is challenged in FCA (Sr) No. 8146 of 2013. 2. The appellant is the wife of the respondent. She filed the F.C.O.P. under Section 9 of the Hindu Marriage Act (for short 'the Act') against the respondent for the relief of restitution of conjugal rights. It was pleaded that the marriage between the appellant and the respondent took place on 16.4.2006 in a non-ceremonial function in an apartment at Kirlamoudi Layout, Visakhapatnam and that both of them have exchanged garlands in a party arranged at Chrome Pub and Restaurant with the participation of friends and family members. After narrating the developments that have taken place ever since their marriage and the nature of misunderstandings between them, the appellant pleaded that the respondent denied her the matrimonial company, without any valid basis or justification. Accordingly, she prayed for a decree of restitution of conjugal rights. 3. The respondent filed IA No. 1871 of 2011 under Order 7 Rule 11 C.P.C. with a prayer to reject the O.P. itself. He pleaded that even according to the description in the O.P., the appellant is a Muslim and it was not even mentioned that she has been converted into Hinduism at any point of time. He further stated that the appellant cannot invoke the provisions of the Act. The trial Court allowed the I.A. through its order, dated 10.7.2012 and thereby, the O.P itself came to be rejected. 4. Learned Counsel for the appellant submits that the trial Court was not justified in rejecting the O.P. when seriously disputed questions of fact are involved. He contends that the appellant got herself converted into Hinduism and the marriage was performed strictly in accordance with the customs of Hinduism. He submits that even if the respondent has denied the manner, in which the marriage was performed, it is ultimately to be decided after trial and the rejection of the O.P. was not at all justified. 5. He contends that the appellant got herself converted into Hinduism and the marriage was performed strictly in accordance with the customs of Hinduism. He submits that even if the respondent has denied the manner, in which the marriage was performed, it is ultimately to be decided after trial and the rejection of the O.P. was not at all justified. 5. Learned Counsel for the respondent, on the other hand, submits that nowhere in the F.C.O.P., the appellant has stated either that she has been converted into Hinduism or that her marriage was performed in accordance with the customs stipulated under Hindu Religion. He submits that when the respondent has described herself as Muslim, there is no way that the Court could have entertained the F.C.O.P. filed under the Act. 6. The appellant filed the F.C.O.P. under Section 9 of the Act for restitution of conjugal rights. There does not appear to be any serious dispute of the fact that the parties have lived together as wife and husband. However, there is any amount of uncertainty as to the manner in which the marriage was performed. 7. Proceeding under the impression that the marriage between herself and the respondent has taken place according to the customs of the Hindu Religion, the appellant filed the F.C.O.P. under Section 9 of the Act. It is not necessary to refer to the various facts pleaded by the appellant in her O.P. After receiving the summons in the O.P., the respondent filed the I.A. under Order 7 Rule 11 C.P.C. with a prayer to reject the plaint itself and the same was allowed. 8. Learned Counsel for the appellant placed reliance upon the judgment of the Supreme Court in Perumal v. Ponnuswami, AIR 1971 SC 2352 . Their Lordships of the Hon’ble Supreme Court held that the provisions of the Act can be applied to a marriage, even where there is some uncertainty about the personal status of one of the spouses. It was observed that once the marriage was performed, by following the basic tenets of Hindu Religion, proceedings can certainly be maintained under the Act. There is no quarrel with this principle. 9. In the context of dealing with an application under Rule 11 of Order 7 C.P.C., the Court has to take the pleadings in the plaint or the O.P., as the case may be, on their face value. There is no quarrel with this principle. 9. In the context of dealing with an application under Rule 11 of Order 7 C.P.C., the Court has to take the pleadings in the plaint or the O.P., as the case may be, on their face value. Even if there is any dispute, that needs to be resolved after trial. It is only when the contents of the plaint or O.P. are taken on their face value and still they do not constitute cause of action or the suit or the O.P. becomes barred by law, that the application filed under that provision can be allowed. 10. In the instant case, had the appellant pleaded that though she was a Muslim, she was converted into Hinduism and the marriage between herself and the respondent has taken place in accordance with the customs of the Hindu Religion, the I.A. filed by the respondent could certainly have been rejected, even if the respondent disputed the facts pleaded by the appellant. That however is not the case. 11. Firstly, the appellant described herself as Muslim. Secondly, nowhere in the O.P., she has stated that the marriage was performed by following Saptapathi and other customs. The first paragraph of the O.P. reads as under: "Petitioner and respondent are wife and husband and married at residence of the petitioner in a simple non-ceremonial function on 16.4.2006 at 7:30 pm in the premises of the R.K. Duplex Apartment, Kirlampudi Layout, Flat No. 501, fifth floor, Visakhapatnam. Both have exchanged ring and garland and have arranged for a party in the evening at Chrome in a pub cum restaurant before some of their friends and family members. Since then both petitioner and respondent lived together as wife and husband in the R.K. Duplex flat. The marriage was consummated and both of them lived happily and enjoyed matrimonial relationship for the last five years. Out of marital headlock, the petitioner had conceived for two times and the respondent had forced the petitioner to undergo abortion. The abortion was conducted by Dr. Rajni in Lazarus Hospital, Visakhapatnam on 24.3.2009. The document is enclosed which has established the fact stated herein. The second time the petitioner got aborted in the month of November, 2009. The respondent had managed to misplace the document. The abortion was conducted by Dr. Rajni in Lazarus Hospital, Visakhapatnam on 24.3.2009. The document is enclosed which has established the fact stated herein. The second time the petitioner got aborted in the month of November, 2009. The respondent had managed to misplace the document. The petitioner and respondent had a living in relationship for a reasonable period of time i.e., for five years and above and hence the petitioner gained the status of a wife. The respondent cannot ignore this fact. The manual proofs are destroyed by the respondent." 12. Nowhere in this paragraph or for that matter, in any part of the O.P., there is any mention about the marriage having been performed according to the customs of the Hindu Religion or that the appellant has been converted into Hinduism. It is only in her counter to the I.A., that the appellant came forward with that version. As observed earlier, it is the contents of the O.P. that become relevant and not any subsequent explanation. 13. The Act applies only to the marriages that take place between the parties, who profess Hinduism. The importance of the continued obedience to Hindu Religion by the parties is evident from the fact that conversion of one of the spouses to another religion by itself would constitute a ground for divorce. When such is the stringency, the appellant who described herself as Muslim, failed to make any mention that the marriage between herself; and the respondent has taken place according to the customs of Hindu Religion. It was just impermissible for her to initiate proceedings under the Act. The trial Court has taken correct view of the matter. We are not inclined to interfere with the orders under appeals. 14. The appeals are accordingly dismissed. 15. The miscellaneous petitions filed in these appeals shall also stand disposed of. There shall be no order as to costs.