IMPORTANT POINT
Rejection of plaint – There cannot be any bar in joint petition under Sections 12 and 13 of Hindu Marriage Act claiming relief in alternative – Petition cannot be rejected in part and suit as a whole must proceed.

ORDER (ORAL)

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 respond