V.K. SHALI, J.

1. This is an appeal filed under Section 28 read with Article 227 of the Constitution of India by the appellant against the order dated 16.3.2009 by virtue of which the application of the appellant for dismissal of the petition for divorce filed by the respondent herein under Section 13(i)(a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act.

2. The question which is arising for consideration is as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu Marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition.

3. Both Mr. Chandhiok, the learned senior counsel for the appellant and Mr. Jai Bansal, the learned counsel for the respondent have vehemently canvassed for their point of view with a number of judgments but before dealing with their respect