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2017 DIGILAW 1989 (RAJ)

DAULAT SINGH v. BHAGWANI @ BHANWARI

2017-09-06

DINESH CHANDRA SOMANI

body2017
JUDGMENT : Dinesh Chandra Somani, J. 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. 2. 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, 1973 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, 1973 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. 3. 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. 4. Feeling aggrieved with the order and decree dated 01/05/2004 passed by the learned trial Court, the petitioner/appellant has preferred this appeal. 5. Mr. M. M. Ranjan, Sr. Advocate assisted by Ms. 4. Feeling aggrieved with the order and decree dated 01/05/2004 passed by the learned trial Court, the petitioner/appellant has preferred this appeal. 5. 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. 6. Learned counsel for the appellant also contended that the interest of filing of divorce petition arose since the orders under section 125 of CrPC, 1973 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, 1973 and also on the basis of admission of the respondent. 7. 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. 8. In support of his contentions, learned counsel for the appellant placed reliance on Prabir Chandra Chatterjee v. Kaveri Guha Chatterjee reported in AIR 1987 Calcutta 191. 9. 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. 10. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 13. 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. 14. 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, 1973 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. 15. In Prabir Chandra Chatterjee v. 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. 16. 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. 16. 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. 17. Consequently, the appeal is dismissed with no order as to costs.