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Judgment
S.K. Mishra, J.
The present writ petition has been preferred by the Petitioner-wife, who is the Respondent in C.P. No.147 of 2022, instituted by the Opposite Party-husband, now pending before the learned Judge, Family Court, Nayagarh. Impugned is the order dated 13.07.2026, passed by the learned Judge, Family Court, Nayagarh in C.P. No.147 of 2022, as at Annexure-6, vide which the Petitioner’s application under Order VII Rule 11, read with Section 151 C.P.C., stood rejected.
Learned Counsel for the Petitioner, drawing attention of this Court to the pleadings made in paragraph-19 of the plaint in C.P. No.147 of 2022, so also the provisions enshrined under Section 13(1)(ib) of the Hindu Marriage Act, 1955 submits, the said proceeding was initiated by the Opposite Party-husband under Section 13(1) of the Hindu Marriage Act, 1955 for dissolution of marriage and such application was filed before expiry of period of two (2) years from the date of alleged desertion, which is mandatory in terms of the Section 13(1)(ib) of the Hindu Marriage Act, 1955. That apart, it has not been specifically pleaded in the plaint in C.P. No.147 of 2022 as to when the cause of action arose. Hence, the Petitioner-wife was justified to move application under Order VII Rule 11 C.P.C. for rejection of plaint. But, the learned Court illegally rejected the said petition.
It is revealed from the record that in response to the said petition filed under Order VII Rule 11 C.P.C. by the Petitioner, an Objection was filed by the present Opposite Party, who is the Petitioner in C.P. No.147 of 2022, vide Annexure-5. The averments made in Para-1 to 11 of the Petition were denied to be false, fabricated and concocted, stating therein that such an application has been filed with an intent to harass him. That apart, it was also pleaded in the said Objection that the learned Court below disposed of the said C.P. on 23.12.2024, allowing the prayer for decree of divorce ex-parte in favour of the Opposite Party-husband. However, later the Petitioner-wife filed application for setting aside the ex-parte judgment after 9 months of the pronouncement of the judgment and the said petition being allowed, thereafter, she has filed such an application only for the purpose of lingering the final adjudication of the proceeding and to harass the Petitioner.
Taking into consideration the pleadings and arguments advanced by the learned Counsel for the Petitioner, the learned Court below rejected the said petition vide order dated 13.07.2026 with the following observation:
“Heard learned counsel for both parties and perused the record. The scope of Order VII Rule 11 CPC is limited to the averments made in the plaint/petition. At this stage, the Court cannot examine the correctness or truthfulness of the allegations by considering the defence of the respondent. A meaningful reading of the divorce petition shows that it discloses a cause of action and the grounds urged by the respondent regarding limitation, statutory requirements, non-joinder of parties and other factual disputes require adjudication on evidence during trial. Such issues cannot be decided in an application under Order VII Rule 11 CPC. Accordingly, this Court finds no merit in the application. The respondent has failed to establish that the petition is barred by law or that it does not disclose any cause of action so as to warrant rejection at the threshold. The application filed by the respondent under Order VII Rule 11 red with Section 151 CPC is rejected as being devoid of merit. The case shall proceed in accordance with law. Put up on 20.07.2026 for evidence by the petitioner.”
(Emphasis supplied)
Admittedly, while deciding an application under Order VII Rule 11 C.P.C, the Court has limited scope to examine the averments made in the Plaint and the documents filed along with the Plaint. The Court cannot rely on the Written Statement filed by the Respondent/Defendant, while deciding such an application.
As is revealed from the Plaint in C.P. No.147 of 2022, in paragraph-17, it has been stated as follows:
“17.That, the relationship became more sour between the parties when the respondent did not amend her attitude and behavior rather she attacked the petitioner and left his company in the year 2020 and lodged false case under section 498-A IPC in the Lingaraj Police station vide CT case no. 3409 of 2020 and she also filed a case under D.V. Act vide C.M.C case 249 of 2020 before the S.D.J.M. Bhubaneswar and C.M.C. vide C.R.P case no. 144 of 2020 under section 125 Cr.P.C before the Family Judge, Bhubaneswar to harass the petitioner in many ways.”
(Emphasis supplied)
Similarly, paragraphs-19 and 21 of the Plaint, being relevant, are reproduced below:
“19.That, the petitioner joined his duty at Chhatrapur and the respondent resided in the rented house at Bhubaneswar with her son, the petitioner meets all the expenses towards their expenditure, but on 6th November, 2020, the respondent left the rented house with all her belongings as per her own wish to another rented house through a goods transporting vehicle no. OD 02 AU 5791 without intimating the petitioner. The owner of the rented house intimated the matter to the petitioner by mobile phone and need to pay of Rs. 17,684/-towards his rent and electric bill.
21.That, the petitioner has filed so many cases to save her skin without any reasonable and justified grounds to harass the petitioner and the respondent is a woman of wilfulness and she has not realized for her own fault / wrong. Finally the petitioner issued a legal notice on 21.07.2022 to the respondent join his company through his advocate but the respondent bluntly denied to join his company with some false and fabricated allegations.”
(Emphasis supplied)
Though it has not been specifically mentioned in Para 17 of the Plaint as to when the Petitioner-wife deserted the Opposite Party -husband in the year 2020, but 6th November, 2020, on which date she finally left the rented house, where she was allegedly staying with her son after she left the company of the husband, cannot be taken into consideration for the purpose of calculating the period of desertion, to reject the Plaint preferred under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
After hearing learned Counsel for the Petitioner, going through the pleading as well as documents on record and the reasons detailed above, this Court is of the view that there is no infirmity in the impugned order. Accordingly, the writ petition stands dismissed.
However, this Court is hopeful that the learned Court below shall do well to decide all the issues involved in C.P. No.147 of 2022, including the issue regarding maintainability, as has been raised by the Petitioner, who is the Respondent before the Court below, during final trail of the C.P.
I.A. No.17039 of 2026 also stands disposed of accordingly.
Since the writ petition stands dismissed at the stage of admission, office is directed to communicate a copy of this judgment to the learned Judge, Family Court, Nayagarh for its information and record.
Urgent certified copy of this judgment be granted on proper application as per rules.