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 respective submissions, it may be pertinent here to give a brief background of the case.

4. The respondent/petitioner filed a petition against the appellant/wife for grant of divorce under Section 13(i)(a) and (i)(b) of the Hindu Marriage Act on the grounds of cruelty and desertion. It was not disputed that the parties are Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988.

5. After the decree of divorce having been passed, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage Officer, Tis Hazari Court, Delhi under the Special Marriages Act. The parties could not reconcile their inherent differences and the husband on 21.07.2005 filed a petition for divorce on the ground of cruelty and desertion under Section 13(i)(a) and (i)(b) of the Hindu Marriage Act.

6. The appellant contested the petition and filed her written statement on 8.9.2005. Issues were framed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009.

7. On 9.2.2009, the appellant/defendant filed an application under Section 151, CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable.

8. The respondent/petitioner filed his reply to the application and stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13(1)(a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce petition under the Special Marriage Act and therefore, this being only a technical objection should not come in the way of processing and dealing with the petition on merits.

9. The learned ADJ after hearing the arguments of both the sides dismissed the application of the appellant by holding that he has the jurisdiction to entertain the petition for divorce both under the HMA as well as Special Marriage A