The Gujarat High Court recently held that there can’t be any bar on filing composite suit for nullity of marriage under the provisions of Section 12 (1) and for divorce under Section 13(1)(a) of the Hindu Marriage Act, 1955.

The High Court was considering a Civil Revision Application challenging the order passed by the Family Court.

The Single Bench of Justice Sanjeev J. Thaker explained, “...whether the plaint discloses cause of action or not is essentially the question of fact, but whether it does or does not, must be found out from the reading of the plait itself and for that purpose, averments made in the plaint in their entirety must be held to be correct.”

Advocate Satyajit S Sonagara appeared for the Applicant.

Factual Background

The petitioner-husband had filed a composite suit as a Hindu Marriage Petition under Section 12(1) and 13(1) (ia) of the Hindu Marriage Act, 1955 for declaration of nullity of marriage and/or dissolution of marriage by a decree of divorce. In the said proceedings, the respondent-wife filed an appearance along with the application under the provisions of Order VII Rule 11 (1) (a) and (d) of the Code of Civil Procedure, 1908 for rejection of the plaint. The Family Court rejected the application on the ground that not permitting the petitioner-husband to file a composite suit would lead to a multiplicity of proceedings.

Reasoning

On a perusal of the Petition, the Bench noticed that the petitioner-husband had also sought relief for divorce on the ground of cruelty and had also shown instances as to how the petitioner was claiming that the petitioner had suffered mental cruelty at the hands of the respondent.

Some of the incidents that the petitioner mentioned in the petition were concerning denial of the respondent to perform physical marital obligation. It was also alleged that the respondent had also started brainwashing the children and there were continuous fights between them. There were allegations made in the petition about the petitioner having to sacrifice his dreams, to pursue a career and there was physical violence done by the respondent on the petitioner. There were statements made in the petition concerning grounds of mental cruelty.

The Bench said, “The fact remains that application of the respondent is mainly on the ground that is composite suit for nullity of marriage and dissolution of marriage by a decree of divorce, however, the composite suit is for nullity of marriage and / or dissolution of marriage by a decree of divorce and, therefore, in the present case, there are averments in respect of incidents of cruelty with an alternative prayer for nullity under Section 12 of the Act. The fact that the petitioner has stated in the said petition that he came to know about the said fraud / concealment only recently and therefore without leading evidence, the same cannot be decided while deciding the application under Order VII Rule 11 of ‘the Code, 1908’.”

The Bench explained that while deciding an application under Order VII Rule 11 of ‘the Code, 1908’, the plaint and documents can only be looked into and not the defense of the defendant. As per the Bench, the petition for nullity of marriage is neither contrary nor inconsistent and the same can be entertained by the Court. “The learned Family Court has rightly rejected the application on the ground that not permitting the petitioner husband to file composite suit will lead to multiplicity of proceedings and hence prayer for divorce can be made alternatively. Therefore, there can not be any bar in joint petition under Sections 12 and 13 of the Hindu Marriage Act claiming relief in alternative”, it added.

Dismissing the Revision Petition, the Bench held, “Moreover, even on the basis of the application filed by the respondent, there are no grounds as to how the petition for divorce could not have been filed by the petitioner and as the fact remains that the said relief of seeking divorce will survive, the petitioner can be proceeded under the provisions of Section 13 of the Act, the petition cannot be rejected in part and the suit as a whole must proceed to try.”

Cause Title: A v. B (Neutral Citation: 2025:GUJHC:5026)

Appearance:

Applicants: Advocate Satyajit S Sonagara

Click here to read/download Order







Gujarat High CourtJustice Sanjeev J. ThakerCode of Civil ProcedureHindu Marriage Act 1955

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.