A party can file a fresh divorce petition under Section 13(1A)(ii) of the Hindu Marriage Act if the decree for restitution of conjugal rights is not enforced.

JUDGMENT :

G.JAYACHANDRAN, R.POORNIMA, JJ.

The Civil Miscellaneous Appeal is filed seeking to set aside the fair and decretal order made in H.M.O.P.No.378 of 2018, dated 1.7.2019, on the file of District Family Court, Tiruchirappalli.

2.The appellant herein is the husband and the respondent is the wife. It is the admitted case that the marriage between the appellant and respondent was solemnized on 2.2.2009 according to Hindu rites and customs. They lived together only for seven days and got separated due to mistrust and accusation. The husband filed a Petition for divorce in H.M.O.P.No.121/2010 before the Sub Court, Trichy. The wife filed H.M.O.P.No.3895 of 2010 before the second Additional Family Court, Chennai for restitution of conjugal rights.She also filed M.C.NO.485 of 2010 for maintenance before the Family Court, Chennai. The cases were transferred to the Second Additional Family Court, Chennai and renumbered as H.M.O.P.No.1300 of 2011, on the file of Second Additional Family Court, Chennai and got dismissed for default on 5.6.2012. The Petition filed by the wife in H.M.O.P.No.3895/2010 for restitution of conjugal rights was allowed, whereas, the maintenance case filed by the wife in M.C.No.485 of 2010 was allowed exparte and the husband was directed to pay a sum of Rs.10,000/- per month as maintenance. There was no further appeal on these petitions which culminated on 5.6.2012. After six years, the appellant filed H.M.O.P.No.378 of 2015 for divorce on the ground that the respondent despite having obtained an exparte decree for restitution of conjugal rights, after six years not on the ground of an exparte decree three years ago, had not taken any steps for their reunion and therefore, since they are living separately even after a decree of restitution of conjugal rihts for more than one year, is entitled for divorce. He has also taken a plea that the respondent has given a false complaint to the police after dismissal of the divorce petition holding that he has solemnized an illegal marriage with one Vimala and therefore, committed the act of bigamy. The criminal complaint with false accusation leads to broken marriage.

3.The trial Court, on considering the evidence let in by either side, had held that the marriage relationship exists only for one week and there is no consummation of marriage. However, taking note of the Petition filed for restitution of conjugal rights in the year 2010 and the complaint to the police to make the husband to come and join with her, has taken no steps by the wife to enforce the decree for restitution of conjugal rights and dismissed the Petition for divorce stating that the appellant ought to have pursued his earlier petition for divorce instead of filing a fresh petition for divorce, is not maintainable.

4.The learned Trial Court had specifically mentioned that the dismissal of the earlier H.M.O.P ought to have been restored by filing a petition under Order 9 Rule 9 of Civil Procedure Code, instead of filing a fresh H.M.O.P, is not maintainable.

5.The learned Senior Counsel appearing for the appellant submitted that the order of the trial Court suffers from legal infirmity and factual error. The provisions of the Hindu Marriage Act entitles a person to institute a fresh petition for divorce if there is no restitution of conjugal rights in a proceedings to which they are parties (Section 13(1A)(ii)). While so, the finding of the trial Court that the appellant ought to have resorted to the provision under Order 9 Rule 9 of Civil Procedure Code to restore his earlier divorce petition is illegal and not sustainable. The subsequent events has given a new cause of action to the appellant to maintain a petition of divorce and having found that the marriage was not consummated and had sustained only for seven days and the parties are living separately fore more than 16 years and the respondent wife had not taken any steps even she is armed with a decree for restitution of conjugal rights in respect