The main legal point established in the judgment is that the principle of res judicata does not apply when a previous petition was not decided on merits, and there is no legal bar for filing a fresh petition under the relevant provisions of the Hindu Marriage Act.

1. The present Revision Petition has been filed by the wife to struck down the proceeding in H.M.O.P. No.118 of 2010 filed by the Respondent/husband as against the Revision Petitioner under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, for dissolution of the Marriage that took place between them on 19.5.1991.

2. According to the Revision Petitioner, the Respondent/husband originally filed H.M.O.P. No.47 of 2005 on the file of Principal Sub-Court, Nagapattinam under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, to pass a decree for divorce, dissolving the marriage between him and the Revision Petitioner that took place on 19.5.1991. Since the Revision Petitioner was residing at Trichy, she filed Tr.C.M.P.(MD) No.9067 of 2005 before the Madurai Bench of this Court to transfer the said Petition from the file of Principal Sub-Court, Nagapattinam to the file of the Principal Sub-Court, Trichy and the same was also ordered on 9.8.2006 and the Petition was renumbered as H.M.O.P. No.298 of 2006; but the said Petition was dismissed for default since the husband did not appear before the Court. Now, after the lapse of five years, again the Respondent/husband filed a Petition for the same relief in H.M.O.P. No.118 of 2010 before the Principal Sub-Court, Mayiladuthurai.

3. It is the contention of the Revision Petitioner that the present Petition is not maintainable since the cause of action in the present Petition and the earlier Petition, which was dismissed for default, and the relief claimed in both the Petitions are one and the same. The learned Counsel further submitted that since the Revision Petitioner had obtained an order from this Court transferring the earlier Petition from the file of Sub-Court, Nagapattinam to the file of Sub-Court, Trichy, wantonly the Petitioner left the matter to go for default and after a lapse of five years, he filed a fresh Petition before the Principal Sub-Court, Mayiladuthurai for the same relief, only to harass the Revision Petitioner. This amounts to abuse of process of law. Therefore, the proceedings in H.M.O.P. No.118 of 2010 are liable to be struck down. In support of his submissions, the learned Counsel has relied on the decision reported in Dindigul Pettai Sathangudi Shatriya Nadar Uravinmurai v. Selvaraj, 2009 (2) CTC 87.

4. On the contrary, the learned Counsel for the Respondent/husband would submit that the earlier Petition in H.M.O.P. No.47 of 2005, which was re-numbered as H.M.O.P. No.298 of 2006, was not decided on merits and the same was dismissed for default. Hence, the Principle of res judicata will not apply and, as such, there is no bar in filing a fresh Petition. Moreover, the present Petition is filed not on the same cause of action and he relied on the decisions reported in 2000 (1) MLJ 86 and State of U.P. v. Jagdish Sharan Agarwal, 2009 (1) SCC 689, in support of his contentions.

5. Keeping in mind the submissions made by the learned Counsel for both sides, I have carefully gone through the materials available on record. The submissions made on behalf of the Petitioner/wife are two folds:

(i) since the cause of action has already been decided, the present Petition is not maintainable;

(ii) only to circumvent the order of this Court passed in earlier H.M.O.P. No.47 of 2005, transferring the Petition from the file of Sub-Court, Nagapattinam to the file of Sub-Court, Trichy, the Petitioner purposely left the matter to go for dismissal and thereafter filed the present Petition which amounts to abuse of process of Court.

6. It is not in dispute that the earlier Petition for divorce was not decided on merit and it as dismissed for default. Therefore, I am of the view that the question of applying the Principle of res judicata does not arise. In this regard, a reference could be placed on the decision cited by the Respondent in State of U.P. v. Jagdish Sharan Agarwal, 2009 (1) SCC 689, and the relevant paragraphs are extracted hereunder:

“14. In the present case, the