The Gauhati High Court has held that a husband cannot seek judicial separation on the same grounds of cruelty and desertion that were already rejected in his earlier divorce proceedings.

The High Court observed that a subsequent petition for judicial separation must be based on a fresh cause of action arising after the dismissal of the earlier divorce petition.

The Division Bench of Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma held that findings in the earlier divorce proceedings once affirmed by the High Court remain binding on the parties in respect of the existing cause of action.

The Court made the observation while dismissing an appeal filed by Husband against a Family Court order rejecting his petition seeking judicial separation from his wife under Section 10 of the Hindu Marriage Act, 1955.

The couple married on May 14, 2012 and have a son born in September 2013. In 2015, the husband had filed a divorce petition alleging mental cruelty. The petition was dismissed by the District Court in February 2017 and the Gauhati High Court subsequently dismissed his appeal in July 2018.

Thereafter in 2019, the husband filed another petition seeking judicial separation on the grounds of cruelty and desertion. The Family Court, Nalbari dismissed this petition as well prompting him to approach the High Court.

Examining the subsequent petition, the High Court noted that the husband had raised 29 grounds to establish cruelty and desertion. However, except for one ground he had failed to specify whether the alleged incidents had occurred before or after the earlier divorce proceedings.

The Bench held that grounds arising before the filing of the earlier divorce petition could not be raised again in subsequent proceedings particularly when they could have been raised in the earlier case.

High Court observed that some of the grounds were barred by the principles of constructive res judicata as they could have been taken in the earlier divorce proceedings.

“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” the High Court observed.

The Court also examined the husband allegation that his wife had started behaving more rudely towards him after the dismissal of his divorce petition.

Rejecting this contention, the Bench observed that the allegation was vague and lacked material particulars explaining the nature and manner of the alleged conduct. It held that such a bald allegation was insufficient to establish cruelty.

The husband also argued that the marriage had irretrievably broken down. Rejecting this submission, the High Court reiterated that it could not grant divorce or judicial separation on grounds other than those specified under Sections 10 and 13 of the Hindu Marriage Act.

“The power to dissolve a marriage on the ground of irretrievable breakdown of the marriage is available only to the Hon'ble Supreme Court while exercising powers under Section 142 of the Constitution of India” the High Court observed.

Finding no merit in the appeal, the High Court dismissed it and upheld the Family Court's decision.

Counsel for the Appellant: Mr. R Mazumdar, Mr S Sarmah, Mr. S Hazarika, Mr B Kaushik, Mr. U Sarma, Mr H Bezbarua

Counsel for the Respondent: Mr. M Mahanta, Mr. U K Barma, Ms. S Mahanta