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Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
The present connected petitions challenge the common order dated 07.02.2023 passed by the Family Court No. 3, Nagpur. By the said order, the Family Court rejected the application filed by the petitioner in Writ Petition No.1527/2023 seeking dismissal of the suit on the ground that respondent No.1 - husband had repeatedly instituted petitions on the same grounds. By the very same order, the Family Court also rejected the application preferred by the petitioner in Writ Petition No.2527/2023 below Exhibit 17, thereby declining to dismiss the suit as against the petitioner.
Aggrieved by such rejections, the petitioners have approached this Court by way of present connected writ petitions.
For the sake of brevity, the facts of the case are being referred to from Writ Petition No.1527/2023, which is treated as the lead petition.
Facts, as emerging from the lead petition, are as follows :
That, the petitioner is the legally wedded wife of respondent No.1 and their marriage was solemnized on 20.12.1990 according to the customs prevailing in their caste. After marriage the petitioner resided with the respondent No.1 in his joint family and out of the said wedlock, they have one daughter. Subsequently, matrimonial disputes arose between the parties on account of alleged cruelty committed by respondent No.1, resulting in the petitioner being humiliated and ultimately driven out of the matrimonial home.
That, on 31.08.2002, respondent No.1 instituted a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 before the Joint Civil Judge, Senior Division, Bhandara, principally alleging cruelty and adultery against the petitioner. The petitioner appeared and contested the said proceedings by filing her written statements and specifically denied the allegations levelled against her. After framing of the necessary issues and conclusion of the trial, the lower Court held that respondent No.1 had failed to prove that the petitioner had treated him with cruelty or had deserted him for a continuous period of not less than two years. The allegation that the petitioner was living in adultery was also not established.
Consequently, the Joint Civil Judge, Junior Division, Bhandara, by judgment and decree dated 15.10.2009, dismissed the divorce petition with costs. Being aggrieved by the same, respondent No.1 preferred an appeal before the District Court, Bhandara, which came to be dismissed and the judgment and decree of the Trial Court was confirmed. Thereafter, respondent No.1 preferred Second Appeal No.532/2011 before this Court. The said Second Appeal was also dismissed by this Court by judgment and order dated 19.03.2014 thereby attaining finality.
That, despite the aforesaid adjudication and without there being any change in circumstances, respondent No.1 once again instituted Petition No.A-112/2015 before the Family Court, Nagpur, on 05.01.2015, raising substantially the same allegations and grounds which had already been adjudicated by the competent Court. During the said proceedings, the petitioner contested the claim and preferred applications under Section 24 of the Hindu Marriage Act, 1955 and Section 18 of the Hindu Adoptions and Maintenance Act, 1956 seeking maintenance. The Family Court granted interim maintenance of Rs.7,000/- per month from the date of application. However, the respondent No.1 failed to comply with the said order and did not pay the maintenance as directed.
That, on account of such non-compliance, the petitioner moved an application seeking dismissal of the proceedings, and the learned Family Court ultimately dismissed Petition No.A-112/2015 for non-compliance with the maintenance order by order dated 25.07.2017. The petitioner had also preferred an application dated 04.03.2017 under Section 11 and Order XXIII of the Code of Civil Procedure, seeking dismissal of the subsequent proceedings in view of the earlier adjudication. However, the said application could not be decided on merits as the petition itself came to be dismissed for non-compliance. Thereafter, respondent No.1, again relying upon substantially the same allegations and documents, instituted Petition No.A-251/2022 before the learned Family Court, Nagpur, on 14.02.2022.
That, the petitioner contended that the proceedings initiated by respondent No.1 constituted a third attempt to seek divorce on the same set of allegations, without any change in circumstances and despite the earlier findings which had attained finality. She, therefore, preferred an application below Exh.-17 dated 01.02.2023 seeking dismissal of the petition. The learned Family Court No.3, Nagpur, by order dated 07.02.2023, rejected the application, observing that a subsequent petition based on a different cause of action was not barred by res judicata.
As regards the issue arising in Writ Petition No.2527/2023, the petitioner therein is the landlord of the petitioner-wife in Writ Petition No.1527/2023. The respondent No.2-husband has alleged that his wife was in an adulterous relationship with the said landlord. The Writ Petition No.2527/2023 is filed as the Family Court No. 3, Nagpur, by order dated 07.02.2023, rejected the application filed by the petitioner-landlord pleading dismissal of the suit as against him.
We have heard Mr. H.S. Chawhan, learned Advocate for the petitioner in Writ Petition No.2527/2023 and respondent No.2 in Writ Petition No.1527/2023, Mr. R.T. Anthony along with Mr. Abhay Sambre, learned Advocate for Respondent No.1 in both the writ petitions, Mr. M.P. Kariya, learned Advocate for respondent No.2 in Writ Petition No.2527/2023 and learned Advocate for the petitioner in Writ Petition No.1527/2023.
The learned counsel for the petitioner in Writ Petition No.1527/2023 submits that the Family Court failed to consider that the respondent No.2-husband has preferred third petition for divorce on the same set of allegations which have already attained finality and thus the action is barred by the principles of res judicata.
Furthermore, the learned counsel for the petitioner in Writ Petition No.2527/2023 submits that the Family Court ought to have taken into consideration Order I Rule 3 of the Civil Procedure Code, 1908 stating that if relief is not sought against a party then such party cannot be arrayed as a defendant. It is submitted that the petitioner has no relation with the husband-wife dispute and should not be arrayed as a party to the matters.
Per contra, the learned counsel for the respondent No.1-husband, states that the earlier matrimonial proceedings were dismissed for want of sufficient evidence, which dismissal was thereafter affirmed in appeal and in Second Appeal No.532/2011. Subsequently, the respondent No.1-husband obtained additional materials indicating the alleged marriage of the petitioner-wife with landlord, which includes the marriage certificate and other public documents. These subsequent developments constituted fresh and material circumstances giving rise to a distinct cause of action.
It is further submitted that the subsequent divorce petition was not dismissed upon adjudication of the matrimonial dispute on merits, but came to be dismissed on account of non-compliance with the order directing payment of maintenance. Such dismissal cannot operate as res judicata so as to bar consideration of a subsequent petition.
Lastly, the learned counsel submits that the Family Court committed no error or perversity in rejecting the applications for dismissal of the proceedings at the threshold. The impugned order being legal, reasoned and in accordance with the material placed before the Court deserves to be accepted.
The rival contentions fall for consideration. The previous litigation between the parties inter se is admitted. As can be seen from the judgment of the Family Court, Bandara the said Court has non-suited the husband i.e. respondent No.1 herein only on the ground that the adulterer i.e. the person with whom it is alleged that the wife is in adulterous relation is not a party to the proceedings. Furthermore, in the second round of litigation, the husband has been non-suited only on a ground that he has failed to pay the arrears of maintenance. Thus, there are two distinct grounds for non-suiting the husband i.e. respondent No.1. Hence, there is no effective adjudication as the first litigation is dismissed for non-joinder of necessary party and the second litigation is dismissed for non-compliance of the order of maintenance.
In the backdrop of these facts if para 8 of the present proceeding i.e. Petition No. A 251/2022 is perused, the same specifically alleges that the document about second marriage of the petitioner-wife with the respondent No.2 was received by the petitioner recently i.e. after dismissal of the petition. As far as matrimonial litigation is concerned every subsequent act or omission of the offending spouse can give rise to a new cause of action. It is a settled principle of law that there is a difference between a continuous cause of action and a recurring cause of action, as far as matrimonial litigation is concerned and more particularly the concept of mental cruelty as enunciated by the Hon’ble Apex Court and this Court from time to time. Each separate act or omission of the offending spouse may give a new cause of action to the offended spouse and therefore it cannot be said that only because there was earlier litigation between the parties, which was decided against the husband, he cannot file a separate petition. However, he will have to prove that the alleged acts of mental cruelty/adultery/any other ground as pressed in the petition was not available to him during the pendency of the earlier petition and a decision thereon.
The allegations made in the petition and more particularly the fact that the respondent husband got knowledge of the second marriage of the wife after the dismissal of the petition is essentially a question which would be decided during the course of trial where evidence/depositions would be tested on the anvil of cross-examination. The petitions cannot be dismissed on the threshhold only because in an earlier round of litigation the same issue has been decided. The issues which were raised in the earlier petition were essentially on the facts of the said case where mental cruelty/adultery was alleged on the set of facts which were pleaded in the petition.
Thus, I find no perversity in the order impugned. The petitions are, therefore, dismissed being without any merit and accordingly dismissed. Both the petitions are dismissed. Rule discharged.