The Madras High Court held that no bar of res judicata could apply on a second petition for divorce as long as the cause of action for the subsequent proceedings remains to be different.

The Court was dealing with a revision petition filed by the petitioner against the order passed by the Subordinate Judge dismissing the petition filed for the rejection of divorce petition on the ground of res judicata.

A Single Bench of Justice G.K. Ilanthiraiyan said, “Even, if same grounds are taken in the subsequent proceeding for divorce, no bar of res judicate could apply as long as the cause of action for the subsequent proceedings remains to be different.”

The Bench further said that insofar as the ground of dissolution of matrimonial matters are concerned, they are of continuing or recurring nature.

“The petition for dissolution of marriage on the ground of cruelty, desertion and adultery is not precluded from suing again for dissolution on the same grounds, provided the relief is founded on new facts. The cause of action means a bundle of facts constituting the right of a party which he has to establish in order to obtain a relief from a Court”, the Court noted.

Advocate R. Nalliyappan appeared for the petitioner i.e., the wife while Advocate I. Calvin Jones appeared for the respondent i.e., the husband.

In this case, the respondent/husband filed a petition for divorce in on the ground of cruelty as against the petitioner/wife herein. At the same time, the petitioner also filed a petition for restitution of conjugal rights. The Family Court allowed the petition for restitution petition and dismissed the divorce petition. The respondent preferred an appeal and the Appellate Court granted divorce as well as dismissed the restitution of conjugal rights petition.

Being aggrieved, the petitioner filed an appeal and the High Court reversed the findings of the first appellate Court and dismissed the divorce petition and allowed the restitution of conjugal rights. However, the respondent filed another petition for divorce and therefore, the petitioner filed a petition under Section 11 of the CPC to dismiss the petition on the ground of res judicata. The Court below dismissed the said petition and as against which, the petitioner filed the Civil Revision Petition.

The High Court after hearing the contentions of both parties asserted, “The facts which constitute the grounds of cruelty, desertion or adultery as the case may be, are likely to vary giving rise to different causes of action depending on the facts and circumstances of each cases.”

It was further observed by the Court that when cause of action is of continuing and recurring nature, the subsequent litigation of divorce brought on same grounds disregarding the dismissal of former O.P. will not be barred by res-judicata.

“… the Court below rightly dismissed the petition and this Court finds no infirmity or illegality in the order passed by the Court below. Since the divorce petition is of the year 2018, the trial Court viz., Subordinate Judge, Udumalpet, is directed to dispose the divorce petition within a period of six months from the date of receipt of a copy of this Order”, the Court directed.

Accordingly, the Court dismissed the revision petition.

Cause Title- Shanthakumari @ Shanthi v. Venkatasubramani

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