AMLAN SABITA Vs. SWADESH NAYAK

JUDGEMENT

(1.) This writ petition by the petitioner-wife seeks to assail the impugned order dtd. 16/12/2024 passed by the learned Judge, Family Court, Bhubaneswar in C.P. No.131 of 2020 refusing to reject the petition of the petitioner in an application under Order-7 Rule-11(d) of the Code of Civil Procedure, 1908 (in short, "CPC").

(2.) In the course of hearing of the writ petition, Mr. S.S. Bhuyan, learned counsel for the petitioner emphatically submits that the petitioner and OP have married by registering their marriage under the provision of Special Marriage Act, 1954, but the divorce application has been filed under Sec. 13 (1) (i-a) of the Hindu Marriage Act, 1955 and, thereby, the claim of the OP is barred by law as contemplated under Order-7 Rule-11(d) of the CPC.

(3.) After hearing the learned counsel for the petitioner and on going through the impugned order, this Court does not hesitate to state that it is the substance, but not the form under which an application has been made and appropriate relief to which the petitioner is entitled to should not be withheld merely because the application has been filed under wrong nomenclature. This view of this Court is also reiterated by the different Constitutional Courts. In this case, on perusal of the copy of the petition as annexed by the writ petitioner, it goes without saying that the said application was made one under Sec. 13 (1) (i-a) of the Hindu Marriage Act, 1955 (in short, the "Act"), but in the first paragraph of the pleadings, the petitioner therein has averred that their marriage has been solemnized under Special Marriage Act, 1954, but nowhere in the entire body of the petition it has been averred that the marriage was solemnized according to Hindu rights and customs. True it is that the application has been filed under Sec. 13 (1) (i-a) of the Hindu Marriage Act, which is incorrect because since the marriage of the parties is solemnized in accordance with the Special Marriage Act and, therefore, the proceeding for divorce has to be filed one under the provision of Special Marriage Act, but notwithstanding to such fact, the petitioner incorrectly filed the application U/S. 13 of the Act. The learned trial Court in the impugned order has taken note of this fact and considered that since the Family Court has jurisdiction to deal with the matter relating to Hindu Marriage Act and Special Marriage Act and the application being filed under wrong nomenclature under Hindu Marriage Act, it should not be thrown at the threshold by resorting to Order-7 Rule-11(d) of the CPC. Such finding of the learned trial Court does not appears to be incorrect in view of the fact that it is the substance, but not the form under which an application has been filed and appropriate relief to which the applicant is entitled to shall not be withheld merely because the petition has been filed under wrong nomenclature. Further, if a proceeding has been filed under wrong nomenclature, the same can be entertained by holding it to have been filed under right nomenclature. In this case, although the petitioner has filed an application under Sec. 13 (1) (i-a) of the Hindu Marriage Act, but the same can be treated as an application for Special Marriage Act. Further, Sec. 29(4) of the Hindu Marriage Act makes it ample clear that no provisions of the Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954 with respect to the marriages between Hindus solemnized under that Act, whether before or after commencement of this Act.