Second Matrimonial Case For Divorce Not Hit By Res Judicata When It Is Based On New & Subsequent Cause Of Action: Allahabad HC
The Allahabad High Court ruled that a second matrimonial case for divorce on the grounds of cruelty and desertion is not hit by the principle of res judicata as it is based on new and subsequent cause of action.
The Appeal, before the High Court, was filed under Section 19 (1) of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 by the appellant-husband against the judgment of the Family Court dismissing the matrimonial case filed by him for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 on the ground of being barred by the principle of res judicata.
The Division Bench of Justice Om Prakash Shukla and Justice Rajan Roy said, “The second matrimonial suit is based on a subsequent and fresh cause of action relating to the infliction of cruelty and desertion on a subsequent date and as such the second divorce petition is very much maintainable and the principle of res judicata does not apply.”
Advocate Mohd.Yasin represented the Appellant while Advocate Rakesh Kumar represented the Respondent.
The appellant had filed a Matrimonial Case under Section 13 of the Hindu Marriage Act, 1955 (First Matrimonial Case) for dissolution of marriage on the ground of desertion after two years of marriage. This case was dismissed by the Family Court on the reasoning that desertion on the part of the respondent was not proved by the appellant. The Single-Judge Bench dismissed the appeal stating that desertion wasn’t proved.The appellant, almost after two and half years from the date of the aforesaid judgment again filed a Second Matrimonial Case for dissolution of marriage under Section 13.It was contended that cruelty was inflicted upon by the Respondent on one specific day when respondent-wife and her relatives hurled abuses against appellant’s mother and sister, beat them up with kicks and fists and also broke various household items. According to the appellant, when alarm was raised by his mother and sister, villagers rushed to the place of occurrence whereupon, all the assailants, including the respondent ran away.
The Family Court dismissed the second case stating that the same was barred by res judicata as the appellant complained about the same facts ever since their marriage except that of a single incident of cruelty which appeared to be part of the same sequence of events which were involved in the first suit. Aggrieved thereby, the appellant approached the High Court.
The issue for determination in this appeal was whether the present divorce case was hit/ barred by principle of res judicata, since the appellant had earlier filed a divorce petition and the same was dismissed and appeal against it was dismissed and suit was also dismissed albeit on grounds other than given by trial Court.
The Bench, at the outset, explained that the principle enunciated in Section 11 of Code of Civil Procedure provides that no Court should try any “suit” or "issue" in which the matter directly and substantially in issue has been directly and substantially decided in a formal suit.
“From the bare reading of the above provision, it appears that the principles of re judicata under Section 11 of the Code of Civil Procedure is based on the rule of law that a ground shall not be fixed for one and the same cause. The only thing the Court has to see is that whether new suit is in fact founded upon a cause of action distinct from the foundation of the former suit”, the Bench said.
Referring to the judgment of the Apex Court in State of Maharastra and Anr. Vs. M/s National Construction Company, Bombay and Anr, the Bench said, “Even if the second suit under consideration would have been filed on some other ground, which was not a ground in the earlier suit for dissolution of marriage, yet, by virtue of application of Order II Rule 2 of the Code of Civil Procedure, he could not have succeeded because the new suit is in fact founded upon the same cause of action…”
“In the present case, there is no adjudication on the fresh/subsequent cause of action, which has been raised by the appellant in the second matrimonial case. No doubt, the appellant raised the ground of cruelty and desertion and filed the present/second case for dissolution of marriage, however, it is apparent from a plain reading of the second matrimonial case for divorce that the cause of action pleaded was different in the earlier suit and as such this Court does not find any legal impediment in maintainability of the second matrimonial case for divorce on the grounds of res judicata”, the Bench held.
Allowing the appeal and remitting the matter back to the Family Court, the Bench suggested the Family Court to make an earnest endeavour to decide the matter within a period of eight months.
Cause Title: X v. Y [Neutral Citation- 2024:AHC-LKO:76761-DB]
Appearance:
Appellant: Advocate Mohd.Yasin
Respondent: Advocates Rakesh Kumar,Arun Kumar
