4.5 The petition for nullity of marriage is neither contrary nor
inconsistent and the same can be entertained by the Court. The
learned Family Court has rightly rejected the application on the
ground that not permitting the petitioner husband to file composite suit will lead to multiplicity of proceedings and hence prayer for divorce can be made alternatively. Therefore, there can not be any bar in joint petition under Sections 12 and 13 of the Hindu Marriage Act claiming relief in alternative.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 351 of 2024
X vs Y
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 22/01/2025
1. The present Civil Revision Application has been filed
challenging the order passed by the learned Principal Judge, Family
Court, Ahmedabad below Exh.16 in Family Suit No.271 of 2022
dated 05.10.2023.
2. For the sake of convenience, the parties herein are referred to
as their original status referred to before the Family Court i.e.
petitioner – husband and the respondent – wife, for the sake of
convenience.
2.1 The facts leading to the filing of the present Revision
Application are that petitioner has filed composite suit being Hindu
Marriage Petition No. 271 of 2022 under the Hindu Marriage Act,
1955 i.e. petition under Section 12(1) and 13(1) (ia) of the Hindu
Marriage Act, 1955 (‘the Act’, for short) for declaration of nullity of
marriage and / or dissolution of marriage by a decree of divorce.
2.2 In the said proceedings, the respondent had filed appearance
along with the application vide Exh.16 under the provisions of
Order VII Rule 11 (1) (a) and (d) of the Code of Civil Procedure,
1908 (‘the Code, 1908’, for short) for rejection of the plaint. It was
the case of the respondent in the said application that from the
statement made in the petition, the petition is barred by law and
that composite petition under Sections 12(1) and 13 (1) (ia) of ‘the
Act’ are not permissible.
2.3 In the said application, the respondent has also given brief
background of the dispute between the parties but the same is not
required to be looked into as while deciding the application under
Order VII Rule 11 of ‘the Code, 1908’, only the averments made in
the plaint and the documents annexed with the plaint have to be
examined.
2.4 Learned advocate for the applicant has argued that in the said
application Exh.16, it has also been stated that under the provisions
of 12(2)(a)(i) of ‘the Act’, the petition has to be presented within
one year and, therefore, it is the case of the respondent in the
application that the petition, qua the prayer of the nullity under
Section 12 of ‘the Act’ is hopelessly time barred by law of
Limitation.
2.5 It is also the case of the respondent that as the petitioner had
voluntarily left the respondent after 18 years of long married
relationship, the petition for nullity under Section 12 of ‘the Act’
cannot be entertained on the ground of consent obtained by force
or fraud or as to the concealment of illness of the respondent. It is
also the case of the respondent in the application under Order VII
Rule of ‘the Code, 1908’ that no proper cause of action has been
disclosed so as to entitle the petitioner to file composite petition of
claiming nullity of marriage and in the alternative divorce under
the provision of Section 13 of ‘the Act’.
3. Learned advocate for the respondent – wife has argued that
the respondent challenges the order dated 05.10.2023 passed by the
learned Principal Judge, Family Court below Exh.16 application
filed under Order VII Rule 11 of ‘the Code, 1908’ on the ground
that the learned Family Court has not properly examined the
petition and from the facts stated in the plaint, the suit is not
maintainable. It has also been argued that composite petition for
nullity of the marriage under Section 12 for divorce is not
maintainable. Hence, the composite petition for nullity of marriage
and dissolution of marriage by a decree of divorce is required to be
rejected under the provisions of Order VII Rule 11 of ‘the Code,
1908’.
4.1 Having heard learned advocate for the respondent, the
question before this Court is that whether the composite suit filed
for nullity under the provisions of Section 12 (1) and for divorce
under Section 13(1)(a) of ‘the Act’ can be rejected under the
provisions of Order VII Rule 11 of ‘the Code, 1908’. The fact
remains that looking at the petition, the petitioner husband has also
sought relief for divorce on the ground of cruelty and has also
shown instances as to how the petitioner is claiming that petitioner
has suffered mental cruelty at the hands of the respondent. Some of
the incidents that the petitioner has mentioned in the petition are
with respect to denial of the respondent to perform physical marital
obligation, petitioner has also stated in the petition that the
respondent has also started brainwashing the children and has also
alleged that the respondent used to say that the mother of the
petitioner had performed some sort of ‘Kala Jaadu’ on respondent
wife and that there were continuous fights, mental torture by
respondent. In the petition, it is also alleged that respondent is
habituated to using extremely unparliamentary language in normal
conversion and during fights and respondent has started abusing
children verbally and physically. There are also allegations made in
the petition about the petitioner having to sacrifice his dreams, to
pursue career and there was physical violence done by the
respondent on the petitioner. There are also instances mentioned in
the petition that respondent has also threatened to kill the daughter
by rushing with the knife towards the children room and caused
extreme fear and mental agony to petitioner. In the petition, the
petitioner has also mentioned that the respondent has approached
the superior of the petitioner of Income Tax department and made
allegations against the petitioner and that evidence of cruelty to
which the petitioner was subjected to by the respondent was stated
to have been mentioned in the petition. Therefore, the petitioner in
the petition has narrated the facts with respect to the grounds on
which he is claiming to be entitled for divorce under Section 13 of
the Act.
4.2 With respect to provisions of Section 12(1) of the Act, the
petitioner has also stated in the petition that owing to constant illhealth of respondent, there was no physical relationship and that
neither respondent nor her parents had disclosed about actual
physical condition of the respondent prior to marriage and,
therefore, as alleged that marriage was obtained by fraud and
concealment of illness and mental status of the respondent.
Therefore, there are statements made in the petition with respect to
grounds of mental cruelty.
4.3 The fact remains that application of the respondent is mainly
on the ground that is composite suit for nullity of marriage and
dissolution of marriage by a decree of divorce, however, the
composite suit is for nullity of marriage and / or dissolution of
marriage by a decree of divorce and, therefore, in the present case,
there are averments in respect of incidents of cruelty with an
alternative prayer for nullity under Section 12 of the Act. The fact
that the petitioner has stated in the said petition that he came to
know about the said fraud / concealment only recently and
therefore without leading evidence, the same cannot be decided
while deciding the application under Order VII Rule 11 of ‘the
Code, 1908’.
4.4 The Law in deciding an application under Order VII Rule 11
of ‘the Code, 1908’ is very clear and the same is that the plaint
and documents can only be looked into and not the defense of the
defendant. Moreover, whether the plaint discloses cause of action or
not is essentially the question of fact, but whether it does or does
not, must be found out from the reading of the plait itself and for
that purpose, averments made in the plaint in their entirety must
be held to be correct. The test is as to whether if the averment
made in the plaint are taken to be correct for its entirety, a decree
would be passed. Moreover, while deciding whether the plaint
reflects cause of action or not, the Family Court was not required
to make an elaborate inquiry into doubtfulness or complicated
question of law or facts but the Court is restricted to ascertain
whether cause of action is shown. In the present case, the
petitioner has elaborately stated about the instances of the incidents
on the basis of which he claims that he is entitled for divorce on
the ground of mental cruelty and has also stated that petitioner is
also entitled for declaration of nullity of marriage as the actual
facts were not in knowledge of the petitioner. It is only after
leading the evidence, the Family Court can come to the conclusion
that whether the petitioner was well within the knowledge, at the
time of marriage or just after the marriage, as regards the grounds
under which the petitioner is seeking declaration of nullity of
marriage. However, the fact remains that prayer for divorce will
always survive.
4.5 The petition for nullity of marriage is neither contrary nor
inconsistent and the same can be entertained by the Court. The
learned Family Court has rightly rejected the application on the
ground that not permitting the petitioner husband to file composite
suit will lead to multiplicity of proceedings and hence prayer for
divorce can be made alternatively. Therefore, there can not be any
bar in joint petition under Sections 12 and 13 of the Hindu
Marriage Act claiming relief in alternative.
4.6 Moreover, even on the basis of the application filed by the
respondent, there are no grounds as to how the petition for divorce
could not have been filed by the petitioner and as the fact remains
that the said relief of seeking divorce will survive, the petitioner
can be proceeded under the provisions of Section 13 of the Act, the
petition cannot be rejected in part and the suit as a whole must
proceed to try.
5. For the above discussion and the reasons recorded, the
present Revision Application requires to be dismissed at the
threshold and it is dismissed accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
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