Hindu Marriage Act | No Bar On Joint Petition For Nullity Of Marriage And Divorce: Gujarat High Court

The Gujarat High Court dismissed a wife's revision plea challenging a family court order which rejected her Order VII Rule 11 CPC application for rejection of her husband's 'composite suit' for nullity of marriage and divorce alleging cruelty, after noting that there is no prohibition on filing such a suit or joint petition. The court further observed that while examining the wife's application for rejection of plaint, the family court was not supposed to elaborately go into the facts but to only check if cause of action was made out. It also said that an application under Order VII Rule 11 CPC is "very clear and the same is that the plaint and documents can only be looked into and not the defence of the defendant". It said that after leading evidence the family court can decide on the grounds seeking nullity of marriage; however the prayer for divorce will always survive. Justice Sanjeev J Thaker ordered, “The petition for nullity of marriage is neither contrary nor inconsistent and the same can be entertained by the Court. The learned Family Court has rightly rejected the application on the ground that not permitting the petitioner husband to file composite suit will lead to multiplicity of proceedings and hence prayer for divorce can be made alternatively. Therefore, there cannot be any bar in joint petition under Sections 12 and 13 of the Hindu Marriage Act claiming relief in alternative.”The husband had approached the family court in a composite suit under under Sections 12(1) (annulment of marriage on specific grounds) and 13(1)(ia) (permits divorce on the ground of cruelty) of the Hindu Marriage Act seeking nullity and/or dissolution of marriage. The wife filed application for the rejection of the plaint under Order VII Rule 11 CPC stating that the petition is barred by law and a composite petition under Section 12(1) and 13(1) (ia) of the Act are “not permissible”. She said that the husband's petition is to be present within one year and the prayer of nullity of marriage is hopelessly time barred by the law of limitation and the husband had voluntarily left the wife after 18 years of long married relationship and therefore, the nullity under Section 12 of the Act cannot be “entertained on the ground of consent obtained by force or fraud or as to concealment of illness” of the wife. The Counsel for the wife then argued 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. He lastly submitted that the Family Court failed to properly examine the petition and that a composite plea for nullity and divorce is not maintainable under the Order VII Rule 11 of the CPC, 1908 (grounds for rejecting a plaint, including lack of cause of action, barred jurisdiction, or insufficient court fees)It was contended by the husband in the plea before the Family Court that he sought for divorce under Section 13 of the Hindu Marriage Act citing mental cruelty by the wife, did not fulfil marital obligations, brainwashed their children and further, the wife accused his mother of performing 'kala jadu' (black magic). He then pointed out the frequent fights, physical violence and verbal fights and the usage of offensive language and mistreatment of their children. Additionally, he stated that he sacrificed his career due to his wife's behaviour. One of the allegations stated that the wife threatened to kill their daughter and rushed towards her room with a knife that induced extreme fear and mental agony to the child. The husband further contended that the wife approached his superiors in the Income Tax Department and made false allegations against him and thereafter, based on these incidents, the husband sought for divorce on the grounds of cruelty. The husband then alleged fraud and concealment of her medical condition before marriage as ground that the wife was constantly ill and there was no physical relationship.The Court then noted in the order “The fact remains that application of the respondent is mainly on the ground that is composite suit for nullity of marriage and dissolution of marriage by a decree of divorce, however, the composite suit is for nullity of marriage and / or dissolution of marriage by a decree of divorce and, therefore, in the present case, there are averments in respect of incidents of cruelty with an alternative prayer for nullity under Section 12 of the Act. The fact that the petitioner has stated in the said petition that he came to know about the said fraud / concealment only recently and therefore without leading evidence, the same cannot be decided while deciding the application under Order VII Rule 11 of 'the Code, 1908'.”The Court then observed that deciding an application under Order VII Rule 11 of CPC, the plaint and documents can only look into and not the defense of the defendant. Further, the determination of whether a plaint ...

Hindu Marriage Act | No Bar On Joint Petition For Nullity Of Marriage And Divorce: Gujarat High Court

Lovina B Thakkar

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