Matrimonial proceedings are based on a continuing cause of action, and the withdrawal of a previous petition for restitution of conjugal rights does not preclude the filing of a subsequent petition for dissolution of marriage.

JUDGMENT :

R.N. MANJULA, J.

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order passed in I.A. No. 4 of 2022 in H.M.O.P. No. 1279 of 2020 pending on the file of the Principal Family Court, Coimbatore.

1. This Civil Revision Petition has been filed challenging the order dated 18.05.2022 passed in I.A. No. 4 of 2022 in H.M.O.P. No. 1279 of 2020 by the learned Principal Judge, Principal Family Court, Coimbatore.

2. Heard the learned counsel for the petitioner and the learned Senior Counsel appearing for the respondent and also perused the materials available on record.

3. The revision petitioner is the wife, against whom the respondent/husband has filed H.M.O.P. No. 1541 of 2019 seeking for restitution of conjugal rights and the same was withdrawn by the respondent. Subsequently, the respondent filed H.M.O.P. No. 1279 of 2020 for dissolution of marriage. During the pendency of the proceedings, the revision petitioner/wife has filed an interlocutory application in I.A. No. 4 of 2022 seeking a prayer to dismiss the petition in H.M.O.P. No. 1279 of 2022 as not maintainable. The said petition was dismissed. Aggrieved over the same, the revision petitioner/wife has preferred the present revision petition.

4. The learned counsel for the revision petitioner submitted that the respondent/husband had initially filed a petition in H.M.O.P. No. 1541 of 2019 for restitution of conjugal rights and the same was withdrawn; subsequently, he filed H.M.O.P. No. 1279 of 2020 for dissolution of marriage; since the earlier petition was withdrawn by respondent/husband without reserving any liberty to file a fresh petition, the original petition filed in H.M.O.P. No. 1279 of 2020 should be dismissed as not maintainable.

5. It is a strange matter, where the wife has filed a petition of this kind. Before adverting into the correctness of the impugned order of the learned Principal Judge, Principal Family Court, Coimbatore, it should be made clear that the cause of action for the spouses to initiate matrimonial proceedings is a personal cause of action. Further it is a continuing cause of action as long as the marriage is subsisting. The respondent/husband had filed a petition in H.M.O.P. No. 1541 of 2019 for restitution of conjugal rights. Later he made up his mind and withdrew the said petition. Subsequently, he filed another petition in H.M.O.P. No. 1279 of 2020 for dissolution of marriage. Even for the sake arguments, if it is assumed that the respondent/husband filed a petition for restitution of conjugal rights and the same was withdrawn and subsequently, he filed a fresh petition seeking divorce, it cannot be stated that the parties did not reserve their rights.

6. Order XXIII Rule 3 of Code of Civil Procedure is applicable only when the parties seek permission of the Court to withdraw certain proceedings with a leave to file a fresh one on the same cause of action. The said provision is not applicable to the matters where there is continuing cause of action. In fact, in this case, the earlier petition filed by the respondent/husband was for restitution of conjugal rights and he had subsequently filed a petition for dissolution of marriage. A spouse, who withdraws a petition for restitution of conjugal rights and if chooses to file a petition for dissolution of marriage, he/she cannot be restrained from filing such proceedings or it cannot be expected from them that they would file a divorce proceedings against some one else other than the spouse. So, the proposition that a fresh petition cannot be filed on the same cause of action without seeking liberty from the Court, cannot be applicable to the matrimonial proceedings, where the parties derive cause of action for either restitution of conjugal rights or for dissolution of marriage so long as they live together or their marriage is in subsistence. In fact, the petition filed by the petitioner/wife is frivolous one and it is not even maintainable.