The Gauhati High Court has held that a suit for judicial separation cannot be based on the same grounds upon which the suit for divorce has been dismissed. The High Court also held that the grounds on which the husband could have instituted the subsequent suit for judicial separation must be based on a fresh cause of action arising after the dismissal of the suit for divorce.

The High Court was considering an appeal directed against the impugned judgment of the Family Court dismissing the suit filed by the appellant husband for a decree of Judicial Separation.

The Bench comprising Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma held, “The said suit for divorce on the same grounds having been dismissed by the learned Trial Court and the appeal thereon also having been dismissed by the High Court, the grounds on which the appellant/husband could have instituted the subsequent suit for judicial separation must therefore be based on fresh cause of action arising after the dismissal of the suit for divorce. This is so as the findings of the learned trial court in the divorce suit on the grounds of cruelty and desertion, as affirmed by the High Court in respect of the then existing cause of action are binding on the parties. Consequently, what requires consideration is whether the grounds raised or facts adverted to in the appellant’s application for judicial separation pertain to fresh causes of action.”

Advocate R Mazumdar represented the Appellant while Advocate M Mahanta represented the Respondent.

Factual Background

The marriage between the appellant and the respondent/wife was solemnised in 2012, out of which a male child was born. In 2015, the appellant/husband had instituted a suit seeking dissolution of the marriage by way of decree of divorce on the ground of mental cruelty, which was contested by the respondent/wife. The said suit came to be dismissed. Aggrieved, the appellant approached the High Court by way of an appeal, which was also dismissed.

The appellant then instituted a case before the Principal Judge, Family Court, seeking judicial separation from the respondent/wife under Section 10 (1) of the Hindu Marriage Act, 1955. The said suit was dismissed, leading to the filing of the appeal before the High Court.

Reasoning

The Bench noted that the appellant had instituted the suit for judicial separation, which was the subject matter of the appeal on the ground of cruelty and desertion, which were the very same grounds on which he had earlier instituted the suit for divorce. The Bench held that the findings of the Trial Court in the divorce suit on the grounds of cruelty and desertion, as affirmed by the High Court in respect of the then existing cause of action, were binding on the parties.

On a perusal of the application for judicial separation filed by the appellant/husband, the Bench noted that the appellant/husband had taken 29 grounds to justify the allegations of cruelty and desertion, but out of the said 29 grounds, save for one, the appellant had failed to state as to whether the cause of action in respect of the said grounds had arisen before or after the filing/dismissal of the divorce proceedings.

“A perusal of the said judgment reflecting the contentions of the appellant therein i.e., the present appellant/husband indicates substantially the same grounds that have been taken in the subsequent application for judicial separation. Even with regard to some of the grounds taken in the subsequent application for judicial separation, it appears that they would be barred by the principles of constructive res judicata as the said grounds could have been taken in the divorce suit as they pertain to the period prior to the filing of the divorce suit”, it stated.

Considering that the appellant/husband had sought to also make out a case of irretrievable breakdown of marriage, the Bench clarified that the power to dissolve a marriage on the ground of irretrievable breakdown of the marriage is available only to the Supreme Court while exercising powers under Section 142 of the Constitution of India.

Thus, finding the petition to be devoid of merit, the Bench dismissed the same.

Cause Title: A v. B (Case No.: Mat.App./26/2021)

Appearance

Petitioner: Advocates R Mazumdar, S Sarmah, S Hazarika, B Kaushik, U Sarma, H Bezbarua

Respondent: Advocates M Mahanta, U K Barma, S Mahanta

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