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Judgment
5 paragraphs · 348 wordsPrafulla C. Pant, J.—Heard.
This appeal is directed against order dated 19.10.2010, passed by Judge, Family Court, Haridwar in Misc. Case No. 27 of 2010, whereby said court has dismissed the petition, filed by the present Appellant u/s 11 of the Hindu Marriage Act, 1955 (for short, "the Act") before issuing the notice to the opposite party.
Section 11 of the Act provides that any marriage solemnized shall be declared null and void on presentation of a petition by either party thereto, if it contravenes Clauses (i), (iv) and (v) of Section 5 of the Act. Copy of the plaint (petition), filed with the affidavit before this Court by the Appellant, shows that neither it is pleaded in said petition that any marriage was ever solemnized with the Respondent, nor it is mentioned that the Respondent had any living spouse, nor the parties were within prohibited degrees and sapindas. In such circumstance, since from the plaint/petition, no cause of action appears to have arisen to the Petitioner (present Appellant), the plaint/petition was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. A perusal of the impugned order shows that the petition (plaint), filed by the Petitioner/Appellant, was not registered as suit.
What has been pleaded in said petition, is the fraud, which is a ground u/s 12 of the Act for getting the marriage declared void. Even in a petition, filed u/s 12 of the Act, the Petitioner is required to plead that the marriage was solemnized by obtaining the consent of the Petitioner fraudulently. Since the petition, filed by the Petitioner (present Appellant) before the trial court, does not disclose cause of action, as such, the trial court has committed no error of law by rejecting the plaint/petition under Order VII Rule 11 of the Code of Civil Procedure, 1908.
For the reasons, as discussed above, this appeal is dismissed summarily with the observation that the Appellant is at liberty to file a fresh petition with correct pleadings required u/s 11 or Section 12 of the Act.