Second Petition For Divorce On Grounds Like Cruelty, Desertion, Adultery Not Hit By Res-Judicata When Founded On New Facts: Madras High Court

Upasana Sajeev

5 Feb 2023 4:37 AM GMT

  • Second Petition For Divorce On Grounds Like Cruelty, Desertion, Adultery Not Hit By Res-Judicata When Founded On New Facts: Madras High Court

    The Madras High Court recently said that as far as grounds for dissolution of marriage are concerned, they are of continuing nature. Justice GK Ilanthiraiyan held that when the cause of action is of continuing and recurring nature, the subsequent petition for divorce will not be hit by res judicata. "The facts which constitute the grounds of cruelty, desertion or adultery as the case...

    The Madras High Court recently said that as far as grounds for dissolution of marriage are concerned, they are of continuing nature.

    Justice GK Ilanthiraiyan held that when the cause of action is of continuing and recurring nature, the subsequent petition for divorce will not be hit by res judicata.

    "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. 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 noted that as long as the cause of action remains different and the relief is founded on new facts, there is no bar on raising the same grounds again.

    "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 court was hearing a criminal revision petition filed by the wife whose petition for rejection of her husband's divorce petition on the ground of res-judicata was dismissed by the court below.

    The husband had initially moved for divorce in 2005 on the grounds of cruelty. At the same time, the wife had filed a petition for restitution of conjugal rights. The family court had allowed the petition for restitution and dismissed the divorce petition.

    On appeal, the appellate court had granted divorce and dismissed the restitution of conjugal rights petition. The petitioner wife had then made a second appeal  the High Court reversed the findings of the appellate court and dismissed the divorce petition, while allowing the petition for restitution of conjugal rights.

    Later, in 2018, the husband moved another petition for divorce on the grounds of desertion and continuous cruelty. Advocate Calvin Jones, appearing for the husband, submitted that after the dismissal of the earlier divorce petition, his wife filed petitions under the Domestic Violence Act and also lodged complaints against him and his family members. Thus, there was continuous harassment and desertion.

    The court noted that the petition reveals a different cause of action and as such, the divorce petition is very much maintainable and the principle of res-judicata will not apply.

    "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," it added.

    Case Title: S v. V

    Citation: 2023 LiveLaw (Mad) 42


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