Himanshu Chadha vs Sangeeta

Adarsh Kumar Goel, J.—The appellant filed a petition for divorce which has been dismissed as a result of finding on preliminary issues of

the petition being barred under Order 2 Rule 2.

Marriage between the parties took place on 28.4.1999 and before filing divorce petition in question on 14.12.2000 giving rise to present

appeal, a petition was earlier filed on 21.10.1999 within one year of marriage which was withdrawn on 15.1.2001. The respondent raised an

objection that present petition will be barred under Order 2 Rule 2 on account of earlier petition having been dismissed as withdrawn without

permission to file a fresh petition.

Learned counsel for (he appellant submitted that withdrawal of the earlier petition without permission will not bar the present petition either

under Order 2 Rule 2 or u/s 11 CPC in as much as the earlier petition was in fact an application u/s 14 seeking permission to file a petition for

divorce before expiry of one year of marriage and since application u/s 14 was not decided within one year of marriage, the petitioner filed a fresh

petition and withdrew the petition filed earlier. No cause of action was available at the time of filing of the first petition and, therefore, question of

bar under Order 2 Rule 2 does not arise and since no permission had yet been granted, there was no adjudication and withdrawal of the petition

for divorce filed before one year of marriage could not amount to res judicata.

Learned counsel for the respondent supported the finding of the trial court and submitted that earlier petition though accompanied by an

application u/s 14 was in fact a divorce petition and for filing a fresh petition, permission of the court was required and if earlier petition was

withdrawn without permission of the court, there could not be any implied permission. Reliance is placed on Judgments reported in Janak Raj v.

Smt. Nirmla Devi (2001)129 P.L.R. 494 and Jagtar Singh v. Smt. Hardip Kaur 1996 CLJ 825.

I have considered the rival submissions and perused the record of the case.

Since the earlier petition had been filed before expiry of one year of marriage, the same could not be entertained unless permission of the court

was granted under Proviso to Section 14 of the Hindu Marriage Act, 1955 (for short, the Act). Admittedly, no such permission had yet been

granted. It is well settled that, dismissal of a suit as premature is not a decision on merits and does not operate as resjudicata as it cannot be held

that the earlier suit which was dismissed as pre-mature had been ""heard and finally decided"". No doubt, provisions of CPC are applicable to

proceedings under the Hindu Marriage Act but principle of res judicata will not apply nor by withdrawing the earlier petition which was premature,

it can be held that the petitioner abandoned the relief sought therein so as to bar a second petition under Order 2 Rule 2 CPC.

Judgments relied upon by learned counsel for the respondents are distinguishable on facts as the said Judgments are not of the nature of which

the present case is i.e. where a petition is filed before expiry of one year and is withdrawn and question whether second petition in such

circumstances will be maintainable, may have been considered.

For the above reasons, the petition is allowed. Judgment of the trial Court is set aside and the matter is remanded to the trial Court for fresh

decision in accordance with law. The parties will appear before the trial Court for further proceedings on 24.3.2003.