DAULAT SINGH Vs. SMT. BHAGWANI @ BHANWARI

JUDGEMENT

(1.) The instant appeal under sec. 28 of the Hindu Marriage Act, 1955 has been preferred by the petitioner/appellant against the order dtd. 01/05/2004 passed by learned District Judge, Sikar (hereinafter referred as "the learned trial Court") on an application under Order 7, Rule 11 of CPC filed by the respondent, whereby the learned trial Court allowed the application and rejected the petition for dissolution of marriage filed by the petitioner.

(2.) Brief facts necessary for disposal of this appeal are that the petitioner filed a petition under sec. 13 of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of desertion and cruelty alleging therein that the respondent is claiming herself to be wife of the petitioner. It is also stated that the petition under sec. 125 of CrPC, 1973 has been submitted by the respondent in the Court of Judicial Magistrate, Sikar with the averment that the said marriage was solemnized before 26 years ago prior to filing of the petition under sec. 125 of CrPC, 1973 and that a baby Rajkumar was born. The petitioner further alleged that he denied the solemnization of marriage with the respondent and he never considered the respondent to be his wife. The respondent filed reply to the petition and denied the contents of the petition asserting that she is legally wedded wife of the petitioner. On basis of the pleadings of the parties, the learned trial Court framed as many as five issues on 13/08/2002. The respondent submitted an application under Order 7, Rule 11 of CPC alleging therein that since the petitioner did not consider the respondent as wife, as such the petition under sec. 13 of the Hindu Marriage Act is not maintainable. The petitioner contested the application by submitting reply thereto.

(3.) After hearing learned counsel for the parties, the learned trial Court allowed the application and rejected the petition vide impugned order dtd. 01/05/2004 holding that the petition does not disclose the cause of action.