This

revision

petition

is

filed

by

the

petitioner/husband under Section 115 of the Code of Civil

Procedure 1908, (for short, hereinafter referred to as

'CPC') challenging the order on I.A.No.3 dated 01.02.2022

on the file of the learned Principal Judge, Family Court,

Bagalkot, wherein the Family Court, has rejected I.A.No.3

filed by the present petitioner under Order 7 Rule 11(a)

R/w Section 151 of CPC seeking rejection of the plaint.

2.

The brief factual matrix leading to the case are

that the plaintiff is the legally wedded wife of the

defendant/petitioner herein and she is working as a

lecturer in the Government Collage, Bagalkot. Their

marriage was performed as per the custom prevailing in

Mohammedan community. The wife further asserted that

the husband has subjected her to ill-treatment and

subsequently deserted her. She also asserts that he has

issued Talaq-E-Hasan notices to her and the second notice

was received during the period of menstruation, which is

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not permissible under the Mohammedan law. Hence, she

has filed a suit before the Family Court for Restitution of

the Conjugal Rights.

3.

The defendant/husband has appeared and filed

his written statement disputing the claim and further

specifically asserted that he has issued three notices of

Talaq to the respondent/wife which are served on her and

hence, the marriage itself is deemed to have been

dissolved. Hence, his contention is that the suit itself is not

maintainable and he has also filed a counter claim under

Order VIII Rule 6(A) of CPC along with written statement

for dismissal of the suit of the plaintiff/wife and also

sought a declaration that plaintiff is his divorced wife.

4.

Subsequently, he filed I.A.No.3 under Order VII

Rule 11(a) for the rejection of the plaint, on the same

grounds which were urged in the written statement as well

as counter claim. The same was objected by the wife and

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the learned Family Court, Judge by impugned order

dismissed I.A.No.3 by considered Order.

5.

Being aggrieved by this finding, the husband is

before this Court by way of revision.

6.

Heard the arguments advanced by the learned

counsel for the petitioner/husband and learned counsel for

the respondent/wife.

7.

Learned counsel for the petitioner/husband

would submit that the wife admitted in her suit regarding

receipt of all the three notices issued regarding Talaq and

hence, there is no cause of action to file a suit for

Restitution of Conjugal Rights. Hence, he would contend

that the learned Family Court, Judge has failed to

appreciate this aspect and in a mechanical way, rejected

his I.A.

8.

Per

contra,

learned

counsel

for

the

respondent/wife would support the order of the Family

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Court and further contended that the husband has already

sought a counter claim and whatever now he agitating can

be considered during the course of trial only and same

cannot be considered under Order VII Rule 11(d) and

hence, sought for dismissal of the revision.

9.

Having heard the arguments and perusing the

records, there is no serious dispute of the fact that the

petitioner and the respondent are husband and wife and

their marriage was said to have been solemnized on 24.10

2010. The husband is now asserting that he has issued

three Talaq notices which were served on wife and hence,

the

marriage

is

presumed

to

be

dissolved

under

Mohammedan law and as such there is no cause of action

to file a suit.

10.

For considering the relief under Order VII Rule

11 of CPC the Court is required to consider the pleadings

made in the plaint alone and defence of the defendant has

no relevancy. I.A.No.3 is filed under Order VII Rule 11(a)

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on the ground that it did not disclose the cause of action.

The plaintiff/wife in her plaint para No.12 specifically

disclosed the date of cause of action to file a suit. Learned

counsel for the revision petitioner/husband invite the

attention of the Court to the pleadings made in the plaint

and contended that the plaintiff has adm