R.S. Chauhan, J.—Thrice the appellant husband has tried to seek divorce from the respondent wife; thrice he has failed. The appellant is challenging the Order dt. 06.02.2001, passed by the Family Court, Ajmer whereby the divorce petition filed by him under Sec. 13 of the Hindu Marriage Act, 1955 (henceforth to be referred to as ‘the Act’, for short) has been dismissed. (The appellant shall be referred to as ‘the husband’, the respondent as ‘the wife’, for short)

2. In a nutshell the facts of the case are that the appellant and the respondent were married on 14.04.1982 according to the Hindu rites and customs. Since differences arose between the parties, on 20.12.1989, the wife left the matrimonial home. In 1990, the husband filed his first divorce petition against the wife. However, as the statutory period of two years from the date of separation had not taken place, the husband did not plead the ground of desertion on the part of the wife. The petition was filed only on the ground of “cruelty”. The said petition was, however, dismissed vide Order dt. 22.11.1991. The husband again filed a second divorce petition in 1992; this time the petition was filed on the ground of cruelty and desertion. However, vide Order dt. 12.07.1995, the second petition was dismissed on the ground of res judicata. The learned Court was of the opinion that since the earlier divorce petition was dismissed on the ground of cruelty, the second petition for divorce was hit by res judicata. After the rejection of the petition, the husband tried his best to convince the wife to return to the matrimonial home, but to no effect. Again the husband filed a third petition for divorce on the ground of cruelty and desertion. During the pendency of the proceedings, the wife moved an application under Sec. 11 of the Civil Procedure Code (henceforth to be referred to as ‘the Code’, for short). Vide Order dt. 06.02.2001, the learned Family Court has accepted the application and rejected the petition on the ground of res judicata. Hence, this appeal before this Court.

3. Mr. Resham Bhargav, the learned counsel for the husband, has vehemently argued that the learned Judge has failed to appreciate the factual matrix of the case. In the first divorce petition in 1990, the ground of desertion was neither pleaded, nor proved. The first divorce petition was based solely on the ground of cruelty. It was the second petition where desertion was taken as a ground for seeking divorce. However, without deciding the case of merit, the petition was erroneously dismissed on the ground of res judicata. The learned Judge has failed to notice that the ground of desertion was neither directly, nor substantially in issue in the first divorce petition. Moreover, the second petition was not rejected on merit, but on the technical ground of res judicata. Therefore, no judicial finding was given about desertion by the wife. Hence, the third divorce petition could not be dismissed on the ground of res judicata. Secondly, cruelty and desertion are continuing “wrongs”. Therefore, these two grounds give rise to fresh cause of action every time. Hence, the concept of res judicata is inapplicable when there is a fresh cause of action based on fresh facts and circumstances.

4. Mr. Rajesh Kapoor, the learned counsel for the wife, has strenuously argued that the husband cannot be permitted to repeatedly file divorce petition. It tantamount to abuse of the process of the Court. He has, thus, supported the impugned Order.

5. We have heard the learned counsels and have perused the impugned Order.

6. While interpreting Section 11 of the Code in the case of Sajjadanashin Sayed MD B.E. EDR. vs. Musa Dadabhai Ummer and Ors., (2000) 3 SCC 350, the Hon’ble Supreme Court held as under:

The words used in Section 11 CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequen

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