A Divorce Petition can be maintainable under Section 13(1A)(ii) of the Hindu Marriage Act even after a prior dismissal if new grounds exist due to non-resumption of cohabitation.

JUDGMENT :

Manjusha Deshpande, J.

1. The Petitioner is taking exception to the order dated 06.11.2023, passed below Exhibit 10, in Petition No. A-2646 of 2019, passed by the Family Court No.3 at Bandra Mumbai, thereby rejecting the Application filed by the Petitioner taking objection to the maintainability of the second Petition for Divorce filed by the Respondent-Husband.

2. The brief facts of the case are that, the Petitioner and the Respondent got married on 16.12.2011. The Respondent-Husband filed Divorce Petition No. A-842 of 2014. The Petitioner-Wife also filed Petition for restitution of conjugal right, viz., Petition No A- 1018 of 2014. A common judgment and decree came to be passed in both the Petitions on 28.07.2017, dismissing the Petition for Divorce filed by the husband and allowing the Petition for restitution of conjugal rights filed by the wife, directing the husband to resume cohabitation within a period of two months.

3. The Respondent-Husband did not challenge the dismissal of his Petition for Divorce or even the order granting restitution of conjugal rights. On the other hand, the Petitioner has filed execution proceedings on 09.03.2018, seeking compliance of the order dated 28.07.2017, along with maintenance Petition No. C-58 of 2018, for maintenance under Hindu Adoption and Maintenance Act, 1956. The Family Court has allowed her Application for execution, attaching the 1/3 salary of the Respondent till further orders for non-compliance of decree of restitution of conjugal rights. The Employer of the Respondent was directed to deduct 1/3 salary from his account and remit it to the Court by way of Demand Draft and warrant of attachment was accordingly issued vide order dated 05.01.2019.

4. Pursuant to the warrant of attachment, the Consent Terms were entered between the parties on 02.04.2019. In the Consent Terms, the Respondent has voluntarily agreed to pay sum of Rs.20,000/- p.m. to the Petitioner on or before 10^th day of every month in view of the Settlement Terms. The Petitioner agreed not to press the interim maintenance in her Petition, i.e., Petition No. C-58 of 2018.

5. After the execution of Consent Terms, the Respondent has once again filed Divorce Petition No A-2646 of 2019, before the Family Court at Bandra, Mumbai. The Petitioner has filed an Application raising objection to the maintainability of the Petition for Divorce under Section 11 of the Code of Civil Procedure, 1908, (CPC) on the ground that, the subsequent Petition for Divorce was not maintainable since the earlier Petition for Divorce was filed on the same ground, therefore, it was hit by principle of res judicata. The objection of the Petitioner was decided by the Family Court on 16.10.2021 by passing an order to frame separate issue and the Application was disposed of. The order passed on 16.10.2021 was challenged in Writ Petition No. 2700 of 2022. This Court has set aside the order dated 16.10.2021, by remanding the matter back to the Family Court, by directing to decide the Application at Exhibit 10 afresh, vide order dated 08.12.2022. After remand, the Judge, Family Court, has decided the Application, vide order dated 06.11.2023, which is impugned in the present Writ Petition.

6. The learned Advocate Ms. Saroj Jadhav for the Petitioner has strongly taken objection to the impugned order by contending that, the Petition for Divorce filed by the husband under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 ( HMA ), has already been dismissed, and the Petition for restitution of conjugal rights has been allowed. The Respondent, withou