Second Divorce Plea On Fresh Cause Of Action Of Cruelty After Dismissal Of First Plea Not Barred By Res Judicata: Allahabad HC

While hearing a case where a man had moved a second divorce plea after dismissal of the first divorce case, the Lucknow bench of the Allahabad High Court said that a second divorce petition filed on grounds of cruelty is maintainable where fresh cause of action arises after the dismissal of the first divorce petition.

In doing so the court observed that the second divorce plea is not hit by the principle of res judicata.

A division bench of Justice Rajan Roy and Justice Om Prakash Shukla held that:

“In present case, apparently, the first matrimonial case for dissolution of marriage filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 was filed on the grounds of cruelty and desertion…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. It has to be reminded that “cause of action” means a bundle of facts constituting the right of a party which he or she has to establish in order to obtain a relief from a Court and the same has to be tested on the anvil of evidence led by the parties. 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.”

Background

Parties got married in 1993. Soon thereafter problems cropped up in the relationship. In 2005, appellant-husband filed the first divorce petition alleging desertion by the respondent-wife. The same was dismissed in 2013 by the family court on the ground that desertion was not proved.

The husband filed an appeal before the High Court which was dismissed as not maintainable as the period of 2 year desertion was not shown by the husband since the divorce petition was filed a day after the wife refused to stay with him.

Thereafter, in 2021, appellant again for a second time filed for divorce alleging mental and physical cruelty inflicted by the wife against the husband and his family members on September 4, 2020. Before the Family Court, the wife pleaded that since the first divorce petition was dismissed by the Court and the dismissal was upheld by the High Court, the second divorce petition was also liable to be dismissed.

Dismissing the second divorce petition, the Family Court observed the isolate incident based on which the second divorce petition was filed was in continuation of the cause of action in the first divorce proceedings and was therefore, barred by res judicata. This order of the Family Court was challenged before the High Court.

Findings

The Court observed that though certain paragraphs of the second divorce petition were same as the first divorce petition, there were additional grounds taken by the appellant the second time. It was noted that the appellant highlighted the litigation costs and other expenses paid to the respondent-wife, and the incident of 2020 where the wife had physically and mentally assaulted the family members of the husband. It was observed that while the first divorce was sought solely on grounds of desertion, the second divorce petition was filed alleging both cruelty and desertion.

Referring to Section 11 of the Civil Procedure Code, the Court held that for the bar of res judicata to operate, it must be seen whether cause of action of the second suit is different from the first suit.

"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," the court said referring to the Supreme Court's decision in State of Maharastra and Anr. Vs. M/s National Construction Company, Bombay and Anr. The apex court had held therein:

“Both the principle of res judicata and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause. In the case of Mohd. Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC at p.86, the Privy Council laid down the tests for determining whether Order 2 Rule 2 of the Code would apply in a particular situation. The first of these is, "whether the claim in the new suit is in the fact founded upon a cause of action distinct from that which was the foundation for the former suit." If the answer is in the affirmative, the rule will not apply.”

The bench thereafter held that the cause of actions in both divorce petitions were different and the cause of action for the second divorce petition arose after the decision in the first divorce petition. Accordingly, the same was not barred by res judicata.

“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.”

Allowing the husband's appeal, the High Court set aside the order of the Family Court in the second divorce petition, and remanded the case for fresh consideration. The court said that it hopes and trusts that the Family Court shall make an earnest endeavour to consider and decide the same within a period of eight months from the date of receiveing copy of the high court's order.

Case Title: X v/s Y

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