Maj.Baldev Chaman(Retd) vs Sheila Chaman
2014 Latest Caselaw 5935 Del

$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of decision: 18th November, 2014

+             MAT.APP.(F.C.) 140/2014 & CM No.18914/2014

       MAJ.BALDEV CHAMAN(RETD)              ..... Appellant
                    Through : Mr. Prabhjit Jauhar, Adv.

                            versus

       SHEILA CHAMAN                  ..... Respondent
                    Through : None.
       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J. (Oral)

1. The appellant has assailed the order dated 10 th September, 2014 whereby his petition under Section 24 of the Special Marriage Act, 1954 seeking a declaration that his marriage with the respondent be declared nullity has been dismissed, primarily for the reason that the petitioner had not pleaded basic facts necessary to disclose cause of action in the present petition. The Family Court has further held in the impugned order that, if it was accepted that the appellant was a patient of recurring epilepsy at the time of marriage, the same was not recognized as a condition for valid marriage under the unamended Special Marriage Act, 1954. It was therefore, held that the petition was not maintainable and was dismissed.

MAT.APP.(F.C.)No.140/2014 page 1 of 3

2. We are informed by learned counsel for the appellant that notice had not been issued to the respondent before the Family Court and by the impugned order dated 10th September, 2014, the matter was dismissed at the initial stage itself. We have therefore, heard learned counsel for the appellant.

3. The impugned order would show that in fact the Family Court has exercised its jurisdiction under Order VII Rule 11(a) of the CPC which enables courts to reject the petition on the ground that it does not disclose a valid and subsisting cause of action for bringing and maintaining the petition against the respondent. The Family Court has additionally held that the petition was barred by law under Order VII Rule 11(d) of the Code of Civil Procedure.

4. The Code of Civil Procedure mandates that in either of such eventuality, the court is required to reject the plaint. Instead of doing so, the Family Court has erroneously dismissed the petition filed by the appellant herein resulting in the present appeal. The difference between dismissal and rejection of a petition is that Rule 13 of Order VII enables a petitioner whose petition has been rejected from presenting a further petition in respect of the same cause of action.

5. In view of the above statutory position, the order dated 10 th September, 2014 to the extent that it dismisses the petition instead of rejecting the same is not sustainable.

6. In view of the above discussion, we hold that the petition was liable to be rejected under Order VII Rule 11(a) and (d) of the

MAT.APP.(F.C.)No.140/2014 page 2 of 3 Code of Civil Procedure instead of being dismissed.

7. We consequently set aside the directions of the Family Court in the order dated 10th September, 2014 to the extent that it directs dismissal of the petition and hereby reject the petition.

This appeal is allowed to the above extent. The pending application is also disposed of.

Let a copy of the order passed by us today be sent to the respondent for information by the Registry by registered AD post without process fee.

Dasti.

GITA MITTAL (JUDGE)

J.R. MIDHA (JUDGE) NOVEMBER 18, 2014/mk

MAT.APP.(F.C.)No.140/2014 page 3 of 3