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Rajasthan High Court · body

2018 DIGILAW 1138 (RAJ)

Shobha Tomar v. B. S. Tomar

2018-05-02

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : 1. The Writ petition challenges the order dated 10.01.2018 whereby the application moved by the petitioner under Section 23(1)(b) of the Hindu Marriage Act read with Order VII Rule 11 CPC has been rejected by the Family Court, Judge. 2. Counsel for the petitioner submits that in view of the provisions contained under Section 23(1)(b), and in view of the compromise arrived at between the parties after filing of the divorce petition which was revoked later on. Proceedings thereafter could not be entertained. on ground of cruelty as h would be deemed to have been condoned. Hence there was no cause of action remaining with the Court to continue with the proceedings. Learned counsel submits that Code of Civil Procedure Code shall apply to the Family Court proceedings. He has also taken this Court to the documents which were placed along with an application to' show that an affidavit has been filed by the respondent with regard to compromise and secondly with regard to the affairs of the trust and the relations between two parties. Learned counsel submits that the dispute arising between the parties in the matters relating to trust, as trustees cannot be taken to be sufficient for taking up case of divorce on the ground of causing cruelty. 3. Having heard both the counsel, this Court finds that Section 21 of the Hindu Marriage Act, 1955 provides guidance to the Family Court and states that "subject to the other any provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908." 4. Thus, by mere reading of Section 21, it is apparent that Code of Civil Procedure Code, 1908 shall not strictly apply to the Family Court proceedings. An application under Order VII Rule 11 can be moved only for rejecting the plaint at the initial stage on the grounds as stated therein. The Order VII Rule 11 reads as under : "Order VII- Plaint Rule 11. An application under Order VII Rule 11 can be moved only for rejecting the plaint at the initial stage on the grounds as stated therein. The Order VII Rule 11 reads as under : "Order VII- Plaint Rule 11. Rejection of plaint - The plaint shall be rejected In the following cases : (a) where It does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but 'the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper with a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails comply with the provision of Rule 9 : Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause prior injustice to the plaintiff." However, the said grounds as noted cannot be possibly examined at the threshold from the mere reading of the plaint (petition) filed under the Hindu Marriage Act, 1955. The contention that the petition does not disclose cause of action cannot be ascertaining from the plaint itself. Cumulative circumstances which are found from the submissions of both the parties and their evidences can only determined whether there was any cause of action for ground of divorce or applications under the various provisions of the Act of 1955, the Family Court has to adjudge the grounds of divorce namely cruelty, desertion and such like other aspects after going through the entire I evidence. 5. 5. It is also a settled principles of law that an application under Order VII Rule 11 action taken into its consideration anything beyond, the contents mentioned in the plaint, the Supreme Court in the case of The Central Provident Fund Commissioner, New Delhi & Ors: Vs. Lala J.R. Education Society & Ors. reported in (2016) JT 10 Page 524, has held that at the stage of Order 7 Rule 11 CPC only the pleadings in the plaint shall be taken into consideration and nothing else including the averments in the written statement can be examined at that stage. 6. This Court has also followed the aforesaid judgment holding an application under Order VII Rule 11 not to be maintainable on grounds which are raised as in defence by the concerned applicant. The petitioner who is a defendant in the petition filed by the respondent, can always taken up all the grounds in defence and contest the petition including the ground under Section 23(1 )(b). 7. Thus from the above discussion, this Court is of a firm view that an application under Order VII Rule 11 is not maintainable in matrimonial proceedings and the Family Courts are well advised to reject such applications in order to avoid delay in proceeding further. It is noted that family disputes ought to be decided as early as possible as it is a known fact that a small abrasion If not treated within time may become an Incurable sore. There is an old saying that "8 stitch In time saves nine." 8. With the said observations, the writ petition flied by the petitioner is dismissed.