Subsequent Divorce Petition on Same Grounds-Not Barred, Just the Cause of Action should be Different-Kerala HC


March 19, 2019

In the instant case, the High Court of Kerala was confronted with the issue of bar on maintainability of subsequent divorce petition. The High Court in the case has elaborated on the law to rule that 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.

Case name: Sunil Kumar K v. Prasobha Devi D & ors.

In the case, the Appellant husband had instituted divorce petition with the respondent wife on grounds of cruelty, desertion and adultery. The respondent wife challenged the petition on the ground of bar of res judicata, because of the dismissal of the former divorce petition by husband on identical grounds.

Also read Suits Barred under CPC: Rule of Res Sub Judice and Res Judicata

Bench’s Verdict

The High Court of Kerala while allowing the appeal, made the following observations in the case:

  • That a subsequent proceeding could be said to be barred by res judicata only when a definite finding on an issue which directly and substantially arose in the former proceeding was finally decided by the court. When no such final decision has been arrived at in the former proceeding on a matter which, in fact did not arise out of the pleadings of the parties, no bar of res judicata can apply to the subsequent proceeding in which the same matter is dealt with.
  • With reference to the facts of the present case, the High Court thus stated that subsequent divorce petition is not barred by any principle of res judicata since no adjudication or any definite finding as to adultery was entered into in the former divorce petition.
  • Under Hindu Marriage Act, the Petitioner has absolute freedom to choose any of the statutory grounds for dissolution of marriage- while elucidating on this legal principle, the High Court opined that no law could compel him to sue for dissolution of marriage on the ground of adultery, besides the other grounds of cruelty and desertion, against his choice. Whether a particular statutory ground ought to be invoked in a proceeding for divorce or reserved or postponed is left to the absolute choice of the party suing for the relief. Many reasons may weigh with the spouse seeking dissolution for choosing or not choosing a particular ground in the proposed proceeding. The ground being within the absolute wisdom of the parties, he or she is not bound to explain the reason for his choice to anyone including the matrimonial court. If he avoids to sue on any one of the grounds for his own reasons, we do not think that Order II Rule 2 of Code of Civil Procedure will step in and bar subsequent institution of a proceeding for dissolution upon a new ground.
  • That bar under Order II Rule 2 of the Code of Civil Procedure is therefore incapable of any application to a proceeding instituted for dissolution of marriage. Each independent and different ground under the Act, 1955 creates different causes of action for dissolution of the marriage. When the relief for divorce is the same in the former and subsequent proceeding, despite the grounds chosen by the party being different, no question of bar under Order II Rule 2 could apply at all.

Hence, the High Court allowed the appeal and ruled that 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.

The entire case can be accessed here.