- (1.) BY the impugned order dtd.20.12.2012, the learned Court below has rejected the application of the petitioner Smt. Chandra under Order 7 Rule 11 C.P.C. in a matrimonial case No.59/2010 ? Rajendra Giri V/s Smt. Chandra, filed by the respondent Rajendra Giri.
(2.) THE defendant Smt. Chandra claimed in the application under Order 7 Rule 11 C.P.C. that since the respondent ? plaintiff Rajendra Giri had come to the Court with a case that no marriage according to Hindu rites took place between the parties, therefore, she was not entitled to get maintenance from him under Section 125 Cr.P.C. and the marriage be declared void under Section 11 of the Hindu Marriage Act, such a petition was not maintainable and deserves to be dismissed at threshold on the anvil of Order 7 Rule 11 C.P.C. The learned court below has rejected the said application holding that it is a matter of evidence whether the marriage in question took place between the parties as per Hindu rites or not and whether it can be declared void under Section 11 of the Hindu Marriage Act on the specified grounds under Section 5 of the Act and consequently, the petition cannot be thrown at this stage on the application of the petitioner under Order 7 Rule 11 C.P.C. The provisions of Section 125 Cr.P.C. ex facie entitles only a wife, unable to maintain herself, to claim such maintenance from the spouse. If the dispute is of the status of the petitioner being wife at all or not exists, it is a matter of evidence. Therefore, the learned court below cannot be said to have committed any error in rejecting the application of the petitioner Smt. Chandra under Order 7 Rule 11 C.P.C. holding that the averments in the plaint will have to be proved on the basis of evidence. There is no error in the impugned order dtd.20.12.2010 and the present revision petition is liable to be dismissed. Accordingly, the present revision petition is dismissed. No order as to costs. A copy of this order be sent to the opposite party as well as learned trial Court.;