PREMILLA KHOSLA Vs. RAJNISH KUMAR KHOSLE

JUDGEMENT

(1.) In this case a wife has filed a petition under Sections 22 and 23 of the Indian Divorce Act 1869. She prays for a decree of Judicial separation on the ground of cruelty by the husband. The petition commences with the statement that the parties were married on 9th April, 1972 at New Delhi 'according to Arya Samaj Rites'. In the second paragraph it is said that 'the petitioner professes the Christian religion while the respondent professes the Hindu religion'. Thereafter, the matrimonial history is narrated with which I am not presently concerned.

(2.) After being served with the petition, the first thing the husband did, even before filing his written statement, was to move an application under Order 7 rule 11 and section 151 of the Code of Civil Procedure 1908. This is the application which I have now to decide. The contention of the husband is that, on the face of it, the petition by the wife is not maintainable under the Indian Divorce Act as it admits that the marriage was performed according to Arya Samaj Rites, which is a Hindu form of marriage and postulates that both parties were Hindus. Therefore, according to the husband, the wife can seek relief, if at all, only under the Hindu Marriage Act 1955 and not the Indian Divorce Act, and, hence the petition should be rejected.

(3.) In addition, the husband has pleaded in the application that, by her representations and conduct, the wife is estopped from saying that she was or is a Christian, and for that reason also the petition is not maintainable under the Indian Divorce Act. So far as this plea is concerned, it cannot be entertained under O. 7, R. 11 of the Civil Procedure Code as it involves questions of fact on which evidence is necessary. Under that rule, it is well established, and, indeed, even accepted by the husband in his rejoinder, that the court can only look at the averments in the petition and nothing else to ascertain whether 'it does not disclose a cause of action'.