JUDGMENT

Vipin Sanghi, J. (Oral). - CM. Nos.35874/2021 & 35876/2021

1. Exemptions allowed, subject to all just exceptions.

2. The applications stand disposed of.

MAT.APP.(F.C) 100/2021 and CM. Nos.35873 & 35875/2021

3. The appellant has assailed the order dated 22.03.2021 passed by the learned Judge, Family Courts, New Delhi District, Patiala House Courts, New Delhi in HMA No.315/2018. By the impugned order, the Family Court has dismissed the application filed by the appellant wife under Order VIIRule 11 CPC seeking rejection of the aforesaid divorce petition preferred by the respondent under Section 13(l)(ib) of the Hindu Marriage Act, 1956 ('the Act') to seek dissolution of marriage on the ground of desertion.

4. The appellant sought rejection of the petition by placing reliance upon Order II Rule 2 CPC. The submission of the appellant - in support of the said application, was that the respondent/ husband had earlier instituted two cases, namely, HMA No.471/2014 for judicial separation under Section 10 of the Act, and HMA No.637/2014 for divorce on the ground of cruelty under Section 13(l)(ia) of the Act, but had failed to include the ground of divorce premised upon the alleged desertion, even though, the said ground was available to the respondent/ husband when the earlier petitions were preferred. The respondent did not include the whole of the claim - which he was entitled to make, in respect of the cause of action and, since he omitted to sue on the ground of desertion - though available to him when he preferred the aforesaid two petitions, he was precluded from, later on, suing in respect of the said ground. The appellant/ wife contended that though the respondent was entitled to grant of both the reliefs in respect of the same cause of action, namely, to seek divorce on the ground of cruelty under Section 13(l)(ia), and on the ground of desertion under Section 13(l)(ib) of the Act, he did not seek the relief of divorce on grounds of desertion, and omitted to do so. While omitting to claim divorce on the ground of desertion in his earlier petitions - particularly HMA No.637/2014, he did not obtain leave of the Court to sue for such relief later on. Thus, he was precluded from preferring the second divorce petition premised upon the ground of desertion under Section 13(l)(ib) of the Act.

5. At the outset, we may observe that so far as the first petition preferred by the respondent/ husband under Section 10 of the Act - to seek judicial separation is concerned, the filing of same, in any event, cannot be relied upon by the appellant for the simple reason, that when the said petition was preferred, the respondent was not interested in seeking a decree of divorce under Section 13 of the Act. Consequently, even if the ground of constructive desertion was available to the respondent - as claimed by the appellant, when he preferred his petition under Section 10 of the Act (HMA No. 471/2014), he was not bound to claim the relief of divorce as he had the option to only claim judicial separation, and not divorce. In any event, this petition was withdrawn by the respondent when he preferred his petition for divorce on the ground of cruelty under Section 13(l)(ia) of the Act, being HMANo.637/2014.

6. The discussion found in the impugned order passed by the Family Court reads as follows:

"6. The provision of Order 2 Rule 2 CPC reads as under: -

"2. Suit to include the whole claim.-(l) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of