The appeal under Section 19(1) of the Family Court Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955, was filed by the appellant (husband) against the decree dated April 7, 2023, passed by the Principal Judge, Family Court, Ambedkar Nagar, Uttar Pradesh whereby the Family Court had dismissed the matrimonial case filed by the appellant 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 marriage of the appellant and the wife (respondent) was solemnized on June 7, 1993, in accordance with Hindu rites and customs. On April 26, 2005, the appellant filed a matrimonial case under Section 13 of the Hindu Marriage Act, 1955, for dissolution of marriage against the wife mainly on the ground of desertion. The case was, however, dismissed by the Family Court, Ambedkar Nagar, by order dated February 28, 2013 predicated on a reasoning that desertion on the part of the wife was not proved by the husband.
Feeling aggrieved by the decree dated February 28, 2013, the husband filed a first appeal in the appellate court. A single judge of the Court, after appraising the decree and the evidence on record, returned a finding that though the suit filed by the husband itself was not maintainable inasmuch as the husband himself averred that the wife had refused to live with the him on April 25, 2005 and admittedly the said suit was presented on April 26, 2005. That meant the suit was presented within two years, which is not as per the provision of Section 13 of the Hindu Marriage Act, 1955, However, the Family Court did not dismiss the suit on that particular ground, but on another ground that desertion on the part of the wife was not proved by the husband. The single judge dismissed the first appeal on the ground of non-maintainability of the suit.
The husband, almost after two and half years from the date of the order, again filed a matrimonial case for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955. The husband, besides levelling almost identical allegations as were made in the earlier case, also alleged this time that his wife had filed a case under Section 12 of the Domestic Violence Act, in which the judicial magistrate, by order dated June 13, 2012, ordered a slew of directions, including payment of lump sum amount of Rs 20,000 as litigation cost, Rs 2000 per month towards maintenance and a right to be provided accommodation in favour of the wife. According to the husband, he had complied with the order dated and also provided his wife a room in his house, wherein, while living in the said room, cruelty had been inflicted by the wife on September 4, 2020.
It was stated by the husband that on that day when his mother was alone, his wife and her brother-in-law and his brother came and hurled abuses at his mother and sister, beat them up and broke various household items. According to the husband, when an alarm was raised by his mother and sister, the villagers rushed to the place of occurrence, whereupon, all the assailants, including his wife, ran away in a vehicle. The incident was reported by the husband’s mother at police station Aliganj, upon which non-cognizable report under Sections 323, 427 and 504 of Indian Penal Code was lodged on September 8, 2020. It was alleged by the husband that the cause of filing the second suit arose subsequent to the dismissal of the earlier suit/ appeal. It was also submitted that the husband and wife were now residing separately in the same premises in village Hithuri, Daudpur, district Ambedkar Nagar.
In the second matrimonial case, a notice was issued to the wife. In response, the wife appeared before the family court and filed a written statement. The statement reiterated the facts of the first matrimonial case of divorce filed by the husband and denied the allegations made in the second matrimonial case regarding cruelty. However, it was admitted by the wife that in pursuance of the order dated June 13, 2012, passed under Section 19 of the Domestic Violence Act, she was residing in a two-room set accommodation in her matrimonial house. It was also stated that since the first matrimonial case filed by her husband for dissolution of marriage was dismissed by the family court and the same was affirmed by the appellate court, the second case filed by the husband for dissolution of marriage was liable to be dismissed.
The High Court noted that the first matrimonial suit was dismissed by the family court by the order dated February 28, 2013. However, in first appeal filed by the husband against the order dated February 28, 2013, the single judge of the court had considered that the first matrimonial suit was filed by the husband within the prescribed period of two years, which is contrary to the legal provision of Section 13 of the Act, 1955.
On July 15, 2021, after about eight years from the date of dismissal of the first matrimonial suit, the husband filed a second matrimonial suit for grant of decree of divorce. The marriage was sought to be dissolved on the ground of desertion in the first matrimonial suit, while in the second suit, the marriage was sought to be dissolved on the grounds of continuous cruelty and desertion.
The High Court said 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 has been directly and substantially decided in a formal suit. The stress would be on the term “issue” used under Section 13 of the Hindu Marriage Act, 1955.
The High Court observed that the principles of rejudication 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 whether the new suit is in fact founded upon a cause of action distinct from the foundation of the former 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, as has been held by the Supreme Court in State of Maharashtra and Anr vs M/s National Construction Company, Bombay and Anr.
The High Court observed 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 case, there is no adjudication on the fresh cause of action which has been raised by the husband in the second matrimonial case. No doubt, the husband raised the ground of cruelty and desertion and filed the second case for dissolution of marriage, however, it is apparent from a plain reading of the second case for divorce that the cause of action pleaded was different in the earlier suit and as such the Court does not find any legal impediment in maintainability of the second matrimonial case for divorce on the grounds of res judicata.
The High Court further said that 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.
The High Court’s decision on the point of determination in the appeal was that the second matrimonial case for divorce on ground of cruelty and desertion is not hit by the principle of res judicata as it is based on new and subsequent cause of action.
—By Adarsh Kumar and India Legal Bureau