A Hindu marriage, including one performed according to Arya Samaj Rites, can be dissolved under the Indian Divorce Act if one of the parties professes the Christian religion at the time of filing the petition, as the Hindu Marriage Act has rendered Hindu marriages monogamous.

( 1 ) IN this case a wife has filed a petition under Sections 22 and 23 of the Indian Divorce Act 1869. She prays for a decree of Judicial separation on the ground of cruelty by the husband. The petition commences with the statement that the parties were married on 9th April, 1972 at New Delhi according to Arya Samaj Rites . In the second paragraph it is said that the petitioner professes the Christian religion while the respondent professes the Hindu religion . Thereafter, the matrimonial history is narrated with which I am not presently concerned.

( 2 ) AFTER being served with the petition, the first thing the husband did, even before filing his written statement, was to move an application under Order 7 rule 11 and section 151 of the Code of Civil Procedure 1908. This is the application which I have now to decide. The contention of the husband is that, on the face of it, the petition by the wife is not maintainable under the Indian Divorce Act as it admits that the marriage was performed according to Arya Samaj Rites, which is a Hindu form of marriage and postulates that both parties were Hindus. Therefore, according to the husband, the wife can seek relief, if at all, only under the Hindu Marriage Act 1955 and not the Indian Divorce Act, and, hence the petition should be rejected.

( 3 ) IN addition, the husband has pleaded in the application that, by her representations and conduct, the wife is estopped from saying that she was or is a Christian, and for that reason also the petition is not maintainable under the Indian Divorce Act. So far as this plea is concerned, it cannot be entertained under O. 7, R. 11 of the Civil Procedure Code as it involves questions of fact on which evidence is necessary. Under that rule, it is well established, and, indeed, even accepted by the husband in his rejoinder, that the court can only look at the averments in the petition and nothing else to ascertain whether it does not disclose a cause of action .

( 4 ) SIMILAR pleas were taken in the written statement subsequently filed by the husband. Proceeding on the mistaken assumption that in her petition the wife had said that she was a Christian at the time of the marriage, the husband now further pleaded that the marriage itself was invalid, because a marriage according to Arya Samaj Rites could not validly be performed unless both parties were Hindus. Actually, all that the wife had said in the petition was that she professes the Christian religion . She did not say that she was a Christian when the marriage was solemnised. Nor did she say she was a Hindu. She was simply silent on the point.

( 5 ) IN her application the wife again said that she is a Christian and thus the petition is maintainable under the Indian Divorce Act . She denied that she ever represented to the husband or to any one else that she is a Hindu . Then, the unintelligible statement is made that she claims to be the wife of the respondent under the Indian Divorce Act . That Act does not deal with marriage but divorce, and it makes no sense to say that she was the wife of the husband under that Act.

( 6 ) THE reply by the wife to the application of the husband contains the same incomprehensible statement It repeats many times that she was and is a Christian and never represented otherwise. Yet, it does not specifically say whether she was a Christian or a Hindu at the time of the marriage.

( 7 ) IN the course of the argument I inquired from counsel for the wife whether she had been converted to Hinduism at the time of, or a little before, the marriage. He was unable to give me any definite reply, and, instead, submitted that in any event, that marriage must be deemed to be valid because the husband, and his relations and friends had always treated the lady as his lawful wife. I decided to refrain from pursuing the matter further as, at this stage, I am not concerned with the question whether the marriage was valid or not. No doubt it will have to be