Case Note & Summary
The appellant husband and respondent wife were married on 21 May 1991. After marital discord, the wife left the husband's company in 1992. The husband filed a Hindu Marriage Petition No. 26/1994 seeking divorce on the grounds of cruelty and desertion. That petition was dismissed, and the appeal (RCA No. 87/96) was also dismissed. The husband then filed Second Appeal No. 126/98 before the Bombay High Court, which was dismissed on 28 April 1998. A Special Leave Petition to the Supreme Court was also dismissed on 27 July 1999. Before the dismissal of the second appeal, on 30 March 1998, the husband filed another Hindu Marriage Petition No. 34/1998 before the Civil Judge, Senior Division, Khamgaon, seeking divorce solely on the ground of desertion. He contended that the earlier petition was dismissed because the requisite two-year period of desertion had not elapsed, but by the time of the new petition, the desertion period exceeded two years. The wife filed an application under Order 7 Rule 11 CPC to reject the petition for not disclosing a cause of action, which was rejected by the trial court. The trial court later dismissed the petition on merits, and the appeal (RCA No. 66/2001) was also dismissed. The husband then filed the present second appeal. The High Court framed the substantial question of law as whether the second petition was barred by res judicata. The court held that the earlier petition and appeals were dismissed on merits, and the ground of desertion was available to the husband at the time of the first petition. The dismissal of the earlier petition operates as res judicata for the period of desertion up to the filing of that petition. The subsequent petition, based on the same desertion continuing, is barred by res judicata. The court dismissed the second appeal, confirming the decisions of the lower courts.
Headnote
A) Civil Procedure - Res Judicata - Constructive Res Judicata - Section 11 CPC - A second petition for divorce on the ground of desertion is barred by res judicata when the earlier petition on the same ground was dismissed on merits, as the cause of action for desertion is a continuing wrong and the earlier decision operates as res judicata for the period up to the filing of the first petition. (Paras 5-6)
B) Hindu Law - Divorce - Desertion - Section 13(1)(ib) Hindu Marriage Act, 1955 - The period of desertion must be continuous for two years immediately preceding the presentation of the petition. A subsequent petition filed after the lapse of the requisite period is not maintainable if the earlier petition on the same ground was dismissed on merits, as the issue of desertion is barred by res judicata. (Paras 5-6)
C) Civil Procedure - Rejection of Plaint - Order 7 Rule 11 CPC - A petition that does not disclose a cause of action or is barred by law may be rejected. However, in this case, the trial court rejected the wife's application under Order 7 Rule 11 CPC, but the High Court held that the petition was barred by res judicata. (Para 4)
Issue of Consideration
Whether a second petition for divorce on the ground of desertion is barred by res judicata when the earlier petition on the same ground was dismissed on merits, even if the period of desertion had not elapsed at the time of the first petition.
Final Decision
The High Court dismissed the second appeal, holding that the second petition for divorce on the ground of desertion was barred by res judicata. The court confirmed the judgments of the trial court and the first appellate court.
Law Points
- Res Judicata
- Constructive Res Judicata
- Desertion
- Divorce
- Hindu Marriage Act
- 1955
- Section 13(1)(ib)
- Order 7 Rule 11 CPC
Case Details
2005 LawText (BOM) (12) 86
Second Appeal No. 357/2002
Shri K.P. Kanungo for the Appellant, Shri A.J. Pophaly for the Respondent
Sanjay Chhaganlal Bhutada
Smt. Rajni w/o Sanjay Bhutada (also known as Rajni d/o Radheshyam Heda)
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Nature of Litigation
Second appeal against dismissal of husband's petition for divorce on ground of desertion.
Remedy Sought
The appellant husband sought a decree of divorce dissolving his marriage with the respondent wife on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
Filing Reason
The husband filed a second petition for divorce after his earlier petition on the same ground was dismissed on merits, contending that the requisite period of desertion had now elapsed.
Previous Decisions
The earlier Hindu Marriage Petition No. 26/1994 was dismissed; Regular Civil Appeal No. 87/96 was dismissed; Second Appeal No. 126/98 was dismissed on 28/4/1998; Special Leave Petition to the Supreme Court was dismissed on 27/7/1999. The subsequent petition No. 34/98 was dismissed by the Civil Judge, Senior Division, Khamgaon, and Regular Civil Appeal No. 66/2001 was dismissed by the Additional District Judge, Khamgaon.
Issues
Whether the second petition for divorce on the ground of desertion is barred by res judicata in view of the dismissal of the earlier petition on the same ground?
Whether the husband can file a fresh petition for divorce on the ground of desertion after the lapse of the requisite period when the earlier petition was dismissed on merits?
Submissions/Arguments
The appellant argued that the earlier petition was dismissed because the requisite period of desertion of two years was not over, and since at the time of the second petition the desertion was for more than two years, the petition should be allowed.
The respondent argued that the second petition was barred by res judicata as the earlier petition and appeals were dismissed on merits, and the ground of desertion was available to the husband at the time of the first petition.
Ratio Decidendi
The principle of res judicata applies to successive petitions for divorce on the same ground. The dismissal of the earlier petition on merits operates as res judicata for the period of desertion up to the filing of that petition. A subsequent petition based on the same desertion continuing is not maintainable, as the cause of action for desertion is a continuing wrong and the earlier decision bars the subsequent petition.
Judgment Excerpts
The earlier petition was dismissed on merits and the ground of desertion was available to the appellant at the time of the earlier petition. The dismissal of the earlier petition would operate as res judicata for the period of desertion up to the filing of that petition.
The subsequent petition based on the same desertion continuing is barred by res judicata.
Procedural History
The appellant husband filed Hindu Marriage Petition No. 26/1994 for divorce on grounds of cruelty and desertion, which was dismissed. He filed Regular Civil Appeal No. 87/96, which was dismissed. He then filed Second Appeal No. 126/98 before the Bombay High Court, which was dismissed on 28/4/1998. A Special Leave Petition to the Supreme Court was dismissed on 27/7/1999. Meanwhile, on 30/3/1998, the husband filed another Hindu Marriage Petition No. 34/1998 for divorce on the sole ground of desertion. The wife filed an application under Order 7 Rule 11 CPC, which was rejected. The trial court dismissed the petition on merits. The husband filed Regular Civil Appeal No. 66/2001, which was dismissed. He then filed the present Second Appeal No. 357/2002.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 11, Order 7 Rule 11
- Hindu Marriage Act, 1955: Section 13(1)(ib)
