KIRAN MAHESH KHATRI Vs. HEMAXI KIRAN KHATRI

JUDGEMENT

(1.) THE present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant-original defendant-husband challenging the impugned order dated 18/01/2006 passed by the learned Principal Senior Civil Judge, Navsari below Exh. 14 in Hindu Marriage Petition No. 13/2001 by which the learned trial Court has dismissed/rejected the said application submitted by the applicant-husband to dismiss the aforesaid Hindu Marriage Petition in exercise of powers under Order 7 Rule 11 of the Code of Civil Procedure.

(2.) THE respondent-wife instituted Hindu Marriage Petition No. 13/2001 against the applicant-husband, who is residing at USA, under Section 9 of the restitution of conjugal rights. In the said Hindu Marriage Petition the applicant-husband submitted an application, Exh. 14 to dismiss/reject the plaint/Hindu Marriage Petition under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure on the ground that the applicant- husband has obtained the divorce decree from the Superior Court at California, Sacramento, USA by which the marriage between the parties has been declared as a nullity and divorce decree has been passed and, therefore, the present Hindu Marriage Petition is not maintainable. The learned trial Court vide impugned order dated 18/01/2006 rejected the application, Exh. 14. Hence, being aggrieved and dissatisfied with the impugned order passed by the learned trial Court below Exh. 14 in Hindu Marriage Petition No. 13/2001 in the rejecting the application, the applicant-husband has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.

(3.) HEARD the learned advocate appearing on behalf of the applicant at length and considered the impugned order passed by the learned trial Court below Exh. 14. At the outset, it is required to be noted that the applicant submitted the application, Exh. 14 to dismiss the Hindu Marriage Petition in exercise of the powers under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure mainly on the ground that in the Hindu Marriage Petition there is no cause of action in view of the divorce decree passed by the Superior Court of California. However, considering the specific averments and allegation made in the Hindu Marriage Petition, it cannot be said that there is no cause of action disclosed in the Petition. Considering the Order 7 Rule 11(a) of the Code of Civil Procedure only in a case where the plaint does not disclose any cause of action, in that case only, the plaint can be rejected under Order 7 Rule 11(a) of the Code of Civil Procedure. It also cannot be said that the Hindu Marriage Petition preferred by the respondent-wife is barred by any law. Under the circumstances, Order 7 Rule 11(d) of the Code of Civil Procedure also would not be attracted. Whether the decree of divorce passed by the Superior Court of California is binding to the learned trial Court and/or binding to the applicant is a question, which is required to be considered at the time of trial. However, on the aforesaid ground, the plaint cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure. Considering the facts and circumstances of the case, it cannot be said that the learned trial Court has committed any error and/or illegality in dismissing the application, Exh. 14 in not rejecting the plaint in exercise of powers under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure.