Whether a second divorce petition on the same grounds is maintainable after the dismissal of the first divorce petition?

On hearing learned counsel appearing on both sides, we find that the court below failed to examine as to whether the objection to the maintainability of O.P. required a preliminary hearing under Order XIV Rule 2 of the Code. It is true that grounds of desertion and cruelty were over again urged as independent grounds for dissolution of marriage in the subsequent O.P. also. Even if same grounds are taken in the subsequent proceeding for divorce, no bar of res judicata could apply as long as the cause of action for the subsequent proceeding remains to be different.

12. So far as grounds for dissolution in matrimonial matters are concerned, they are of continuing or recurring nature. A spouse who suffered dismissal of original 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. 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 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 case. When cause of action is of continuing and recurring nature, the subsequent litigation for divorce brought on same grounds disregarding the dismissal of former O.P. will not be barred by res judicata.

13. Cause of action founded on acts of cruelty and desertion cannot be said to be always fixed or stable, preventing it from being a fresh ground for dissolution of the marriage. If incidents giving rise to cruelty and desertion are different, cause of action will also differ depending on facts and circumstances. Same is the principle when cause of action relates to adultery also. Even assuming that the appellant failed to establish ground of adultery in the former O.P. No. 687/2012, nothing precludes the appellant from urging the same ground of adultery in the subsequent O.P. on new set of facts constituting adultery.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 383 of 2016

Decided On: 06.03.2019

Sunil Kumar K. Vs. Prasobha Devi D. and Ors.

Hon'ble Judges/Coram:

C.K. Abdul Rehim and T.V. Anil Kumar, JJ.

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Whether wife is justified in filing of criminal cases against husband only because he had filed divorce petition?

 In Para 46 of the Judgment the Family Court justified the filing of criminal case underSection 498-A of I.P.C. on the reasoning that it was the Petitioner who first filed divorce petition. We do not agree with such reasoning.

Only because the husband had filed divorce petition, would be no licence for the wife to file criminal cases making wild allegations which she is unable to prove.

Bombay High Court

Ajay Devidasrao Sambare vs Vaishali Ajay Sambare on 21 January, 2016

Bench: R.M. Borde

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Whether Second divorce petition is maintainable after first one was withdrawn?

 In the matter of  N.R. Narayan Swamy vs.
B.   Francis   Jagan  (referred   supra),   the   Hon'ble
Supreme   Court   was   dealing   with   eviction   matter
under   the   Karnataka   Rent   Control   Act,   where
landlord   claimed   eviction   on   the   basis   of   bona
fide requirement. The Hon'ble Supreme Court found
that in the matter of bona fide requirement, there
could   be   recurring   cause   of   action.   In   the   suit
for   eviction   on   the   ground   of   bona   fide
requirement,   even   though   the   premises   remain   the
same, the subject­matter which is cause of action,
may be different. Case of "Sujit Singh" relied on

by   learned   counsel   for   Respondent   can   be
distinguished   as   it   had   different   facts   and
subsequent   matter   was   based   on   same   cause   of
action.   In   the   present   matter,   although   the
foundational   facts   regarding   relationship   of   the
parties   remain   the   same,   the   present   proceedings
could  not be said to be barred  as although  they
refer   initially   to   earlier   incidents,   they   are
based on events which took place subsequent to the
filing of the earlier proceeding which was sought
to   be   withdrawn   in   view   of   the   subsequent
developments. If such view is not taken, it would
mean that once in such matter if the spouse fails
to   establish   cruelty,   subsequently   also   on   the
ground   of   cruelty,   proceeding   would   not   be
entertainable.   When   the   relationship   continues
between   the   couple,   there   could   be   recurring
incidents giving rise to fresh causes of actions
and claim for relief which would be subject­matter
for the subsequent action. 
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 FAMILY COURT APPEAL NO.13 OF 2008
Dr.­X Husband V     Dr.­Y Wife   
                          
     
              CORAM:   R.M. BORDE AND
                       A.I.S. CHEEMA, JJ.
  
  DATED :21st JANUARY, 2016

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