Raghunath Mohanta vs Malabika @ Kakali Mohanta

Sabyasachi Bhattacharyya, J.:

The present appeal has been preferred by the appellant/husband against the dismissal of his divorce suit on the ground of maintainability.

The learned Trial Judge primarily proceeded on the premise that since the cause of action for the present suit is substantially the same as that in the earlier two suits filed by the appellant/husband, the present suit is barred under Order II Rule 2 of the Code of Civil Procedure, in view of no leave having been sought under the said provision at the time when the previous two suits were dismissed for default.

Learned counsel for the appellant argues that first suit was dismissed for default as it was premature. Subsequently, the second suit was withdrawn since the parties had agreed to a divorce petition being filed on mutual consent.

Learned counsel places reliance on the averments made in paragraph nos. 11 to 15 of the plaint of the current suit to indicate that as per amicable settlement, the appellant/husband withdrew his divorce suit, but the respondent/wife went back on her promise and gave false evidence against the appellant and his family members in court on June 12, 2015 and refused to file a petition for mutual divorce. It is submitted that thus, the fact that the respondent/wife resiled from her earlier consent to file a mutual consent divorce petition prompted the filing of the current suit.

It is further submitted that in paragraph no. 15 of the plaint of the present suit, it has been categorically pleaded that the cause of action for this suit arose on and from June 12, 2015, i.e. after the dismissal of the earlier suit. Thus, the cause of action for the present suit is different, subsequent and continuing, and not covered by the dismissals of the earlier suits.

Learned counsel appearing for the respondent/wife controverts the arguments of the appellant and contends that the first suit was dismissed for default apparently on the premise that the same was filed before the statutory moratorium for filing a divorce suit from the separation of the parties. However, the pleadings in the plaint of the second suit were verbatim similar to that of the first suit.

That apart, in the second suit, bearing Matrimonial Suit no. 163 of 2012, an order of payment of interim alimony was passed against the appellant/husband in favour of the respondent/wife under Section 24 of the Hindu Marriage Act. The appellant/husband did not comply with the said order, leading to the second suit being stayed by the learned Trial Court. Thereafter, in order to avoid the liability of payment of such alimony, the appellant/husband had the said suit dismissed as withdrawn.

Thus, it is argued that the learned Trial Judge was justified in dismissing the present suit.

Upon a perusal of the materials on record, we find that the period of the alleged acts of cruelty perpetrated by the respondent, as per the version of the plaintiff/appellant/husband, is common between the three suits. As per the plaint averments in the current suit, the cause of action of cruelty started from immediately after the marriage, which took place on July 31, 2009. According to the plaint, on August 2, 2009, when the parents-in-law of the appellant hosted a dinner to the invitees and after the banquet, the alleged acts of cruelty started.

Thus, we do not find any new cause of action as such having been pleaded in the present suit.

Cause of action, as is well-known, is a bundle of facts. In a suit for divorce on the ground of cruelty, the cause of action is generally not an isolated act, unless grave to such an extent that the parties cannot be expected to live together after the same, but ordinarily is the cumulative effect of a series of acts on the part of one spouse against the other. The bundle of facts leading to the cause of action in the present case started from August 2, 2009 and the vast majority of the alleged acts of cruelty coincide with the period during which the earlier two suits were pending.

The only distinguishing factor which has been sought to be portrayed as a new cause of action is that allegedly the respondent/wife went back on her purported promise to have a mutual consent divorce and gave “false evidence” in court on June 12, 2015.

However, we do not find from the records that any single documentary or corroborative oral evidence has been adduced by the appellant/husband to substantiate the claim that the earlier suit was withdrawn on the respondent/wife’s assurance that a mutual consent divorce would be entered into. We do not find even any draft copy of any mutual consent divorce petition or any oral evidence from any third party being adduced to substantiate such claim of the appellant/husband. As per the records, the said suit was dismissed simpliciter, although not on merits, but due to the default of the husband, thereby putting a fetter on a subsequent suit on the same cause of action by dint of Order IX Rule 9 of the Code of Civil Procedure.

Even if we proceed on the premise that the said suit was withdrawn by the husband, in the absence of any leave being obtained to file a further suit on the self-same cause of action, the current suit is barred by operation of Order XXIII Rule 4 of the Code of Civil Procedure, which stipulates that where the plaintiff abandons any suit or withdraws from a suit, he shall be precluded from instituting any fresh suit in respect of such subject matter.

Moreover, in the absence of any proof regarding there being any talk of a mutual consent divorce petition being filed, coupled with the withdrawal of the suit simpliciter without any leave to sue afresh, the husband is squarely hit by the principle of Order XXIII Rule 4 of the Code.

That apart, as rightly observed by the learned Trial Judge, the provisions of Order II Rule 2 of the Code also debar the plaintiff/appellant from filing the present suit, since no leave was taken by the plaintiff in the earlier suit for instituting a fresh suit, although the events comprising the cause of action, which substantially constitute the plinth of the present suit as well, were available to the plaintiff at the relevant point of time.

In the absence of any pleading of subsequent acts of cruelty on the part of the respondent/wife after dismissal of the previous suits, and in view of the new development as to the alleged withdrawal of the respondent/wife from an agreement to have a divorce by mutual consent, the current suit was palpably barred by the provisions of Order XXIII Rule 4 as well as Order II Rule 2 of the Code of Civil Procedure.

Insofar as the dismissal of the first suit is concerned, the subsequent suits are also barred under Order IX Rule 9 of the Code of Civil Procedure. However, even independently of such bar, as we have already held above, the causes of action of all the three suits substantially covering the same period, the present suit is definitely barred under the provisions as indicated above.

Insofar as the pleading of nullity in the current suit is concerned, the same is also barred separately under Order II Rule 2 of the Code, not having been taken in the first suit.

Hence, we do not find any error of law or fact in the impugned judgment.

Accordingly, FAT 278 of 2023 is dismissed on contest without any order as to costs, thereby affirming the impugned judgment and decree dated April 27, 2023 passed by the learned Additional District Judge at Nabadwip, Distrtict - Nadia in Matrimonial Suit no. 121 of 2015.

A formal decree be drawn up accordingly.

Interim orders, if any, stand vacated.

I agree. (Sabyasachi Bhattacharyya, J.)