No fresh suit can be filed by husband for same cause of action.

Jagarthanam, J.

1. O.M.S. No.9 of 1985 has been filed by Gnanasigamani, the husband, for the dissolution of his marriage with his wife, Kamala Bai. O.M.S. No. 12 of 1983 has been filed by the wife for the restitution of conjugal rights.

2. The facts and circumstances leading to the filing of these two suits and the defences raised therein, in pith and substance, may succinctly be stated as follows: The marriage between the spouses was solemnized on 14,5.1979 in the C.S.I. Church, S.T. Mangaud, Kanya kumari District. The husband was employed as Junior Assistant. Medical Section, University of Madras and was residing in Madras. Even before marriage, the wife, who was a resident of Kalliyikkavilai Village in Kanya kumari District, was employed as a Typist in the office of the Christian Literary Society, Madras, and she continued her employment after marriage also, living at the matrimonial abode. It is alleged that while so living, the wife's behavior towards the elders at home was beyond tolerable limits and very often she returned home late in the night for no reason whatsoever, giving rise to a suspicion of her fidelity. When the husband enquired, he came to know that his wife even before marriage was intimate with one John Rose for fairly long period, in the sense of they living as husband and wife, and even after her marriage, such relationship never got snapped and she led an adulterous course of life with him. On 20.6.1979, she sulked away from the matrimonial home without the knowledge of any one in the house. The husband came to know from one J. Santhi, a co-worker with his wife, that his wife and John Rose were seen together loitering near Moore Market on the day of his wife's departure from the matrimonial home. On 23.6.1979, the husband gave a complaint to the Triplicane police station about the missing of his wife and he stated that he suspected foul play at the hands of John Rose, a cousin of his wife. The husband would also allege that thereafter, he received a letter dated 25.6.1979 from his wife, giving details of her going out of the '' house and asking his pardon for such an act, and she ended the letter as "Kamala who had been unfaithful to her husband". In such circumstances, the husband filed O.M.S.No.19 of 198.2, praying for the dissolution of the marriage between him and his wife. The wife entered appearance and resisted the suit by filing a counter. After framing issues, it was posted for trial and this Court dismissed the same for default The initial restoration application as also the subsequent one filed by the husband was dismissed.

3. In the meanwhile, the wife filed O.P. No. 39 of 1982 before the District Judge, Nagercoil at Kanya kumari, for restitution of conjugal rights, alleging that only with the consent and knowledge of her husband, she went to her native village in July 1980 for medical treatment and her husband in fact thereafter came and stayed with her for some time in the village, and returned to Madras after assuring that he will return to the village within a short period and permanently settle there. That suit was transferred to the file of this Court and numbered as O.M.S.12 of 1983.

4. The husband filed the present suit O.M.S. No. 9 of 1985, impleading his wife and John Rose as parties, on the same set of facts, giving rise to the filing of O.M.S.No.19 of 1982. On receipt of process, the wife as well as John Rose entered appearance through the counsel of their choice and resisted the action by filing separate counters. The counter filed by John Rose was returned for rectifying certain defects by the office on 29.3.85 and the same was not at all re-presented after due compliance. John Rose or his counsel did not, thereafter, take part in the proceedings.

5. The resistance offered by the wife to She divorce action initiated by the husband mainly rested on two grounds, One revolving on facts and the other on law. They are:

(i) To state that the wife had pre-marital relationship with John