WP(C) No.1152 of 2025 p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.1152 of 2025 (In the matter of application under Articles 226 and 227 of the Constitution of India, 1950). Amlan Sabita … Petitioner -versus- Swadesh Nayak … Opposite Party For Petitioner : Mr. S.S. Bhuyan, Advocate For Opposite Party : CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:16.01.2025(ORAL) G. Satapathy, J. 1. This writ petition by the petitioner-wife seeks to assail the impugned order dated 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 WP(C) No.1152 of 2025 p. 2 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 Section 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 Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 ( in short, the “Act”), but in the first paragraph of the pleadings, the petitioner p. 3 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 Section 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 WP(C) No.1152 of 2025 p. 4 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 Section 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. 4. In view of the aforesaid facts and circumstance and taking into account the provision of Order-7 Rule-11 (d) of the CPC and keeping in view the magnanimity of the learned trial Court in treating such p. 5 application of the petitioner to be an application one under Special Marriage Act, it can be said that although the petition has been filed under Section 13 (1) (i-a) of the Hindu Marriage Act, but the same can be treated as Special Marriage Act. Of course, the petitioner who has filed the application has discretion to accept his petition as an application under Special Marriage Act. 5. In the result, the writ petition stands disposed of accordingly and liberty is granted to OP- husband either to accept the application which has filed as one under Special Marriage Act or otherwise the learned trial Court has jurisdiction to pass appropriate order. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 16th day of January, 2025/Subhasmita Designation: Sr. Stenographer