The main legal point established in the judgment is that the provisions of Order 9, Rule 9 of the Code of Civil Procedure apply to divorce petitions under the Hindu Marriage Act, 1955, and the dismissal of an earlier petition in default precludes the filing of a fresh petition based on the same cause of action.

AJAY KUMAR MITTAL, J.

The appellant-wife has approached this Court by way of instant appeal filed under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 10-9-2010 passed by the learned District Judge (Family Court), Bhiwani whereby the petition filed under Sections 13(1)(ia)(ib) and 2(iv) of the Hindu Marriage Act, 1955 (in short “the Act”) by the wife for dissolution of marriage by a decree of divorce, was dismissed.

2. Briefly stated, the facts necessary for adjudication of the present appeal as narrated therein are that the marriage between the parties was solemnized on 15-6-1994 at village Rambas, Tehsil Charkhi Dadri, District Bhiwani as per Hindu rites and ceremonies. Both the parties mutually agreed to separate each other by an agreement dated 15-5-2008 and thus, their relationship as husband and wife came to an end. Thereafter, the appellant filed a petition for divorce. During the pendency of the divorce petition, the father of the appellant died and due to non-appearance, the divorce petition was dismissed in default on 6-6-2009. The appellant filed another petition for divorce on 8-9-2009. The family Court vide order dated 10-9-2010 dismissed the petition holding the same to be barred under Order 9, Rule 9 of the Code of Civil Procedure (hereinafter referred to as “the Code”). Hence, the present appeal.

3. Learned counsel for the appellant submitted that the earlier petition seeking divorce was filed on 22-7-2008 and the same was dismissed in default. Since the earlier petition was not decided on merits and the present petition was filed on the continuous cause of action and, therefore, the fresh petition filed on 8-9-2009 was maintainable. It was also urged that a written agreement dated 15-5-2008 was executed between the parties whereby socially the marriage stood dissolved. According to the learned counsel, the trial Court was in error in dismissing the petition on the ground that the same was not maintainable.

4. Learned counsel for the respondent, on the other hand submitted that since the earlier petition was dismissed in default, therefore, the second petition was barred in view of provisions of Order 9, Rule 9 of the Code.

5. After hearing learned counsel for the parties, we do not find any merit in the submission of the learned counsel for the appellant. Under Section 21 of the Act, the provisions of the Code as far as may be would be applicable to all proceedings under the Act. It is reproduced as under :-

“21. Application of Act 5 of 1908. - Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.”

6. It would also be apposite to refer to Order 9, Rule 9 of the Code which bars filing of a fresh petition where the earlier petition had been dismissed in default. It reads thus:-

“9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

7. Section 21 of the Act provides that all proceedings thereunder shall be regulated as far as may by the Code which is subject to any other provision contained in the Act and to any rules made by the High Court in that behalf. There is no other provision in the Act which deals with dismissals of proceedings in default or their restoration or the effect of non-restora