The Madras High Court recently dismissed a civil revision petition filed by a woman against an order of a lower court that had allowed a second divorce petition filed by her husband.
The lower court had dismissed the woman’s petition filed for rejection of her husband’s second divorce petition on the ground of res-judicata.
The HC upheld the decision of the lower court while stating that “even if same grounds are taken in the subsequent proceeding for divorce, no bar of res judicata could apply as long as the cause of action for the subsequent proceedings remains to be different”.
The bench of Justice GK Ilanthiraiyan observed, “Insofar as the ground of dissolution of matrimonial matters are concerned, they are of continuing or recurring nature…(and) when the cause of action is of continuing and recurring nature, the subsequent litigation of divorce brought on same grounds disregarding the dismissal of former O.P. will not be barred by res-judicata.”
In 2005, the husband filed a divorce petition on the ground of cruelty against his wife. At the same time, his wife also filed a petition for restitution of conjugal rights. The family court allowed the plea for restitution and dismissed the divorce petition. However, eventually, the high court overturned this decision and dismissed the divorce petition while allowing the restitution of the conjugal rights petition.
Thereafter, on the fresh cause of action and on different sets of grounds viz., desertion and continuous cruelty with regard to subsequent events, in the year 2018, the husband filed another petition for divorce.
While the divorce petition was pending, the wife filed a plea under section 11 of CPC to dismiss the petition on the ground of res-judicata. However, the lower court rejected the plea, against which the wife moved the high court.
The counsel appearing for the woman argued that the application for divorce was a clear abuse of the process of law. The principle of res-judicata is clearly applied to the case on hand since already the respondent (the husband) filed a divorce petition on the ground of cruelty and this was dismissed and confirmed by the high court, he submitted.
On the contrary, the counsel for the husband submitted that after the dismissal of the earlier divorce plea, the woman filed several petitions under the Domestic Violence Act and lodged complaints against the husband and his family, causing continuous harassment, which compelled the husband to file for divorce again.
The court perused the divorce petition and observed that it revealed that the cause of action was different than the earlier one.
The cause of action means a bundle of facts constituting the right of a party which he has to establish in order to obtain relief from a court…(and) facts which constitute the grounds of cruelty, desertion or adultery as the case may be, are likely to vary giving rise to different causes of action depending on the facts and circumstances of each case, the court said.
Accordingly, the HC found no infirmity or illegality in the order passed by the lower court and dismissed the present appeal.
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