Filing Plea For Judicial Separation After Dismissal Of Divorce Petition Is 'Gross Abuse Of Process': Punjab & Haryana High Court

The Punjab & Haryana High Court has held that filing of the plea for judicial separation under Section 10 of the Hindu Marriage Act (HMA) after dismissal of divorce petition under Section 13 of HMA is "gross abuse of the process of law."

Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "...Hindu Marriage petition under Section 10 of the HMA, post the rendition of a binding and conclusive dismissal decree on the earlier Hindu Marriage petition filed under Section 13 of the HMA, but necessarily is merely a gross abuse of the process of the law, besides is a cleverly deployed stratagem by the present appellant to untenably circumvent the previous binding and conclusive verdict made on the petition cast under Section 13 of the HMA."

The Court was hearing an appeal against an order of Family Court whereby the petition filed under Section 10 of HMA seeking decree of judicial separation was rejected.

The Court noted that prior to the institution of the judicial separation plea, a petition under Section 13 of the HMA was filed before the Family Court on the similar grounds, which was also dismissed.

It said that the dismissal decree on divorce plea has acquired binding and conclusive effect, as the same remains unchallenged.

Speaking for the bench Justice Thakur said, since the dismissal order on divorce plea has become final, the present appeal against the dismissal order of judicial separation will not be "maintainable" and the parties will be barred by estoppel.

"The effect of apt binding and conclusive effect, thus becoming acquired by a decision made on a petition cast under Section 13 of the HMA, by the present appellant before the learned Family Court concerned, does thereby beget, an inference that the instant appeal, thus is not maintainable, rather on the ground that its preferment became estopped by the apt conclusivity which became acquired by the dismissal decree...as become rendered, on the previously instituted Hindu Marriage petition, as became cast under Section 13 of the HMA," said the bench.

The Court noted that since the grounds pleaded in the divorce application is similar to the judicial separation plea, the parties will be estopped from pleading plea for judicial separation unless they challenge the dismissal order passed on the divorce application.

"Moreover, therebys there would be an unending spate of successive litigations, whereas, the cessation of disputes through makings of binding and conclusive decisions, rather is the holistic spirit behind the creation of the statutory norm of constructive res judicata. Therefore, the said statutory norms is required to be revered rather than its becoming irrevered by this Court," the Court observed.

Stating that there is no merit in the appeal, the plea was dismissed.

Mr. Karan Bhardwaj, Advocate for the appellant.

XXXX v. XXXX

Citation: 2024 LiveLaw (PH) 162