BEENA Vs. KALPESHBHAI AMRUTLAL LAVINGIA

JUDGEMENT

(1.) Present appeal under section 19 of the Family Courts Act, 1984 has been preferred by the appellant herein original claimant / petitioner challenging the impugned order dated 1/3/2013 passed by the learned Family Court, Vadodara, below Ex.18 in HMP No.362 of 2011 by which the learned Family Court has allowed the said application preferred by the respondent herein and has dismissed the aforesaid HMP No.362 of 2011 under Order 7 Rule 11 of the of the Code of Civil Procedure.

(2.) The appellant herein original applicant / petitioner had instituted HMP No.362 of 2011 in the court of learned learned Family Court, Vadodara against the respondent herein under section 10 of the Hindu Marriage Act, 1955 for judicial separation on the ground of cruelty and other reasons and for incidental reliefs. That in the said petition, it was averred by the appellant herein original claimant that she is lawfully married wife of the respondent / opponent. That the marriage between the parties had taken place at Status Hotel, Ellora Park, Vadodara on 19/6/2003 as per the Hindu rites and Saptapadi (i.e. taking seven steps by the parties to the petition jointly). It was further averred in the plaint that the said marriage has been duly registered in the office of the Registrar of Marriages, Vadodara on 30/6/2013. It was further averred that for both the parties it was second marriage. The opponent was the widower and the petitioner was the divorcee. That the petitioner has a child named Sukrut son aged 13 years out of her first marriage and the opponent had also 2 children namely, son - Harikrishna and daughter - Neelam. It was further alleged and averred in the petition that the respondent has started harassing the petitioner and because of such cruelty, it is impossible for her to stay with the opponent. It is further averred in the petition that at the time of her first marriage she was converted into Muslim and she married with one Mohammed Sohil Abdul Sattar Davda. That thereafter she got divorce and thereafter again reconverted into Hindu and after changing her name to Beena, she remarried with the opponent in the year 2003 as per the Hindu rites. Inter-alia alleging that the opponent has lost interest in the petitioner and her son Sukrut and she is being ill-treated by him, she has prayed for dissolution of the marriage between them under section 10 of the Hindu Marriage Act.

(3.) Mr.MTM Hakim, learned advocate appearing on behalf of the appellant herein original petitioner has vehemently submitted that the learned Family Court has materially erred in rejecting the plaint / petition under Order 7 Rule 11 of the Code of Civil Procedure. It is further submitted by Mr.Hakim, learned advocate appearing on behalf of the appellant that as such the learned Family Court has not properly appreciated the scope and ambit of Order 7 Rule 11 of the Code of Civil Procedure. It is submitted that the learned Family Court has not properly appreciated the fact that while considering application under Order 7 Rule 11 of the Code of Civil Procedure, Court is not required to go into the defence and/or merits of the case. It is submitted that the learned Judge has not properly appreciated that while considering application under Order 7 Rule 11 of the Code of Civil Procedure, averments made in the plaint / petition only are required to be considered and not the averments made in the written statement. It is submitted that while considering the application under Order 7 Rule 11 of the Code of Civil Procedure, the Court is not required to go into the merits of the case at all. It is further submitted that as such there was no suppression of material fact as alleged by the opponent. It is submitted that all the necessary averments are made in the petition inclusive of her first marriage.