Karnataka High Court
Smt N Asha vs Sri. Srinivasa Murthy on 30 January, 2024
-1-
NC: 2024:KHC:4011
WP No. 15732 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 15732 OF 2021 (GM-FC)
BETWEEN:
SMT. N ASHA
AGED ABOUT 45 YEARS
W/O SRINIVASA MURTHY
R/O 189, 12TH CROSS
NAGENDRA BLOCK
BANGALORE - 560 050
...PETITIONER
(BY SMT. SONA VAKKUND, ADVOCATE)
AND:
SRI SRINIVASA MURTHY
S/O C GOPAL
AGED ABOUT 46 YEARS
Digitally signed R/O 401, 4TH FLOOR
by SUNITHA JANAVI APARTMENT
GANGARAJU OPP: TO KUVEMPU PARK
Location: High YELAHANKA NEW TOWN
Court of BANGALORE - 560 069
Karnataka
...RESPONDENT
(BY SRI. DHARMAPAL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH VIDE
ANNX-A ORDER PASSED IN M.C.NO.4260/2014 ON I.A.NO.7
FILED U/O 7 RULE 11(a) AND (d) OF CPC DTD 20.02.2021
PASSED BY PRINCIPLE JUDGE FAMILY COURT AT BENGALURU.
-2-
NC: 2024:KHC:4011
WP No. 15732 of 2021
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner aggrieved by the order dated 20.02.2021, passed on I.A.No.7 in M.C.No.4260/2014 on the file of Principal Judge, Family Court at Bengaluru, has filed this writ petition.
2. Brief facts leading rise to filing of this petition are as under:
Respondent filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 in M.C.No.147/2003 before the Family Court, Mysuru. The said case was transferred to the Family Court at Bengaluru which is re-numbered as M.C.No.1195/2005. After full- fledged trial, the said petition came to be dismissed by the Family Court, Bengaluru vide order dated 12.01.2011. The respondent aggrieved by the said order, preferred an appeal in MFA No.1923/2011 which came to be dismissed on 21.02.2014. The respondent filed a petition for -3- NC: 2024:KHC:4011 WP No. 15732 of 2021 dissolution of marriage under Section 13(1)(ib) of the Hindu Marriage Act, 1955 in M.C.No.128/2014 before the Family Court, Mysuru. The said petition was transferred to the Family Court, Bengaluru which is re-numbered as M.C.No.4260/2014. In the said petition, the petitioner filed an application for rejection of petition on the ground that the respondent was required to seek all the reliefs in the petition filed by him in M.C.No.1195/2004 contending that the petition is barred under Order II Rule 2 of CPC and further the respondent has not disclosed the cause of action in the petition. Hence prayed to reject the petition. The respondent filed objections for the said application. The Family Court, after hearing the parties, rejected the application filed by the petitioner. Hence this writ petition.
3. Heard learned counsel for petitioner and learned counsel for the respondent.
4. Learned counsel for the petitioner submits that though the said ground was available to the respondent in the earlier round of litigation, respondent has not raised -4- NC: 2024:KHC:4011 WP No. 15732 of 2021 the plea of adultery. Hence respondent is not entitled to file a second petition. She submits that the petition filed by the respondent is barred under Order II Rule 2 of CPC. She further submits that the respondent has not disclosed the cause of action in the petition. Hence she submits that on this ground the petition filed by the respondent is not maintainable. In order to buttress her argument, she has placed reliance on the judgment of the Hon'ble Apex Court in the case of MADANURI SRI RAMA CHANDRA MURTHY VS SYED JALAL reported in (2017) 13 SCC 174. Hence she submits that the Family Court committed an error in passing the impugned order. The Family Court ought to have allowed the application filed by the petitioner. Hence she submits that the impugned order passed by the Family Court is arbitrary, erroneous and same is liable to be dismissed. Hence on these grounds she prays to allow the writ petition.
5. Per contra, learned counsel for the respondent submits that the respondent has shown the cause of action -5- NC: 2024:KHC:4011 WP No. 15732 of 2021 in para-20 of the petition and he also submits that cause of action is continuous. Hence the second petition filed by the respondent is maintainable. He further submits that Order II Rule 2 of CPC is not applicable to the present case on hand. He submits that the petitioner has filed this application only with an intention to harass the respondent and he further submits that the earlier petition was filed under Section 13(1)(ia) and the present petition is filed under Section 13(1)(ib) of the Hindu Marriage Act, 1955. The cause of action in both the petitions are different. He submits that the Family Court was justified in passing the impugned order. Hence on these grounds he prays to dismiss the writ petition.
6. Perused the records and considered the submissions made by learned counsel for the parties.
7. It is necessary to examine as to whether the objections to the maintainability of the petition requires preliminary hearing under Order VII Rule 11(a)&(d) of CPC. It is true that grounds of desertion and cruelty were -6- NC: 2024:KHC:4011 WP No. 15732 of 2021 over again urged as independent grounds for dissolution of marriage in the subsequent petition also. Even if same grounds are taken in the subsequent proceeding for divorce, no bar of res judicata could apply as long as cause of action for the subsequent proceedings remains to be different. So far as grounds for dissolution in matrimonial matters are concerned, they are for 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 the bundle of facts constituting the right of a party which he has to establish in order to obtain a relief from the 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 continuous or recurring nature, the subsequent litigation for divorce brought on -7- NC: 2024:KHC:4011 WP No. 15732 of 2021 same grounds, disregarding the dismissal of the former petition will not be barred by res judicata.
8. Cause of action founded on acts of cruelty, desertion and adultery cannot be said to be always fixed or stable, preventing it from being a fresh ground for dissolution of marriage. If incidents giving rise to cruelty and desertion are different, cause of action will also differ depending on facts and circumstances of the case. The same is the principle when cause of action relates to adultery also. Even assuming that the respondent failed to establish the ground of adultery in the earlier petition i.e., M.C.No.1195/2004, nothing precludes the respondent from urging the same ground of adultery in the subsequent petition on new set of facts constituting adultery. Further, the petitioner has not produced any records before the Family Court for verifying the pleadings in the earlier petition. However, parties have provided the copy of the petition to this Court. From the perusal of the said petition in M.C.No.1195/2004, it does not disclose -8- NC: 2024:KHC:4011 WP No. 15732 of 2021 that the respondent has made allegation against the petitioner in regard to adultery. Further, from the perusal of the instant petition, it discloses that the petitioner has made allegation against the petitioner in regard to adultery. Further, the petitioner also produced copy of the judgment passed in M.C.No.1195/2004. From the perusal of the said judgment, that, so long as the issue of adultery did not arise from the pleadings of the parties for consideration. Insofar as the ground of adultery is concerned, expressed the view that subsequent petition is barred at least by the principle of constructive res judicata arising from Section 11 Explanation IV as well as bar arising under Order II Rule 2 of CPC. Even assuming that the ground of adultery existed and accrued to the respondent at the time of institution of earlier petition and also no law could compel him to sue for dissolution of marriage on the ground of adultery. Order II Rule 2 of CPC arises under twin situations in a proceeding before an ordinary Civil Court. When a party entitled to make a claim fails to include the whole claim in the former -9- NC: 2024:KHC:4011 WP No. 15732 of 2021 proceeding, but sues for the omitted portion of the claim in a later proceeding, the bar certainly applies. The other situation where the bar applies is when the party entitled to sue, having omitted to sue for all or any of the reliefs without leave of the Court, later sues for the omitted relief on the same cause of action.
9. Dissolution is an independent and complete relief in itself under the Act of 1955. Therefore, I am of the opinion that bar under Order II Rule 2 of CPC can seldom apply to an action for dissolution of marriage unlike actions arising out of disputes between spouses relating to money and property claims. Dissolution is not a claim or relief identical with a claim or relief relating to money or property. Bar under Order II Rule 2 of CPC is therefore inapplicable of any application to a proceeding instituted for dissolution of marriage. Each independent and different ground under the Act of 1955 creates different cause of action for dissolution of the marriage. When the relief for divorce is the same in the former and subsequent
- 10 -
NC: 2024:KHC:4011 WP No. 15732 of 2021 proceeding, despite the grounds chosen by the party being different, no question of bar under Order II Rule 2 of CPC could apply at all.
10. 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 found on a 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 cause of action depending on facts and circumstances of each case. When cause of action is of continuing and recurring nature, the subsequent litigation for divorce brought on the same grounds disregarding the dismissal of earlier petition will
- 11 -
NC: 2024:KHC:4011 WP No. 15732 of 2021 not be barred by res judicata. Even assuming that the respondent failed to establish ground of adultery in the earlier petition, nothing precludes the respondent from urging the same ground of adultery in the subsequent petition on new set of facts constituting adultery.
11. In view of the above discussion, the subsequent petition filed by the petitioner is maintainable. The petitioner has not made out any grounds to establish that the present petition is barred by any of the provisions of law. Hence, the Family Court was justified in rejecting the application filed by the petitioner.
12. Learned counsel for the petitioner has placed reliance on the judgment of MADANURI SRI RAMA CHANDRA MURTHY (SUPRA). There is no dispute in regard to the principle laid down by the Hon'ble Apex Court in regard to the rejection of plaint on the ground that the plaint does not disclose the cause of action. In the instant case, I have perused the copy of the petition filed by the respondent. It discloses that the cause of action. Hence
- 12 -
NC: 2024:KHC:4011 WP No. 15732 of 2021 the Judgment relied upon by the learned counsel for the petitioner is not applicable to the instant petition. Hence, I do not find any grounds to entertain the writ petition. Accordingly, I proceed to pass the following:
ORDER The writ petition is dismissed.
SD/-
JUDGE RD