CALCUTTA HIGH COURT
Sabyasachi Bhattacharyya, J.
Kalyan Dey Chowdhury —Petitioner
versus
Rita Dey Chowdhury —Opp. Party
C.O. No.1039 of 2018
Decided on 8.2.2019
Held: A consideration of the materials on record reveals that, at the juncture when the Supreme Court rendered its judgment in SLP (C) No. 34653 of 2016 (Civil Appeal No. 5369 of 2017), the second application under Section 25 was already filed. Hence, it could not be said that the cause of action of the second application was a subsequent event or that there were changed circumstances, giving rise to a cause of action different from the previous application.
Moreover, the Supreme Court sat on judgment over a review petition which was taken out by the opposite party wife before this court in connection with the previous application under Section 25(2) of the 1955 Act. In the said review application, the opposite party wife had taken subsequent events as grounds, which was ultimately adjudicated by the Supreme Court. Thus, the subject matter in dispute in the second application under Section 25 was already dealt with and finally decided by the Supreme Court on April 19, 2017.
The second application for permanent alimony was already on record since April 4, 2015, that is, from two years prior to the passing of the final order of the Supreme Court, which took into consideration all subsequent events.
As such, it could not be argued that the second application for permanent alimony involved subsequent events or changed circumstances other than those already considered by the Supreme Court in deciding on the previous review petition.
In such view of the matter, the second application was obviously barred by the principle of res judicata. (Paras 13 to 17)
Result: Petition allowed.
Sabyasachi Bhattacharyya, J.—The short question involved in the present revisional application is as to whether a second application filed under Section 25 of the Hindu Marriage Act is maintainable in the teeth of a previous order passed under the same provision between the same parties.
2. The opposite party-wife filed a proceeding under Section 10 of the Hindu Marriage Act against the petitioner-husband, giving rise to Matrimonial Suit No. 533 of 2003. In the said suit, an ex parte decree, incorporating an order of permanent alimony under Section 25 of the Hindu Marriage Act, was passed. Subsequently, the matter was challenged by the husband before this court. Although at the time of disposal of Matrimonial Suit No. 533 of 2013, the trial Judge had passed an order of alimony to the tune of Rs.4,000/- per month and such amount was increased from time to time to Rs.8,000/- per month, the opposite party-wife applied again under Section 25(2) of the Hindu Marriage Act, 1955 praying for enhancement of alimony. The trial court enhanced alimony to Rs.12,000/- per month, against which the opposite party-wife preferred a revisional application bearing C.O. No. 4228 of 2012 which was disposed of on February 2, 2015 by recording that the husband was willing to pay Rs.15,000/- per month but directing the husband to pay Rs.16,000/- per month to the wife.
3. The wife filed a special leave petition against the order of this court which was disposed of on February 22, 2016 by recording that the petitioner sought leave to withdraw the special leave petition with liberty to approach this court in a review petition, which was granted by the Supreme Court.
4. Pursuant to such liberty, R.V.W. 85 of 2016 was filed by the opposite party-wife, which was disposed of on September 15, 2016 by a co-ordinate bench of this court, enhancing the alimony to Rs.23,000/- per month.
5. The petitioner-husband preferred a special leave petition against the said review order, which culminated in an order dated April 19, 2017, whereby the Supreme Court reduced the amount to Rs.20,000/- per month.
6. In the meantime, the petitioner-husband had filed a divorce suit against the opposite party-wife, which was also decreed on November 30, 2012.
7. The opposite party filed another application under Section 25 of the Hindu Marriage Act, 1955 on April 4, 2015 in connection with the divorce decree dated November 30, 2012.
8. The petitioner filed an application under Section 151 of the Code of Civil Procedure challenging the maintainability of the said application. The said maintainability application having been turned down vide Order No. 50 dated April 4, 2018, the husband has preferred the instant revisional application.
9. Learned counsel for the petitioner-husband argues by citing a judgment reported at Guda Vijayalakshmi vs. Guda Ramachandra Sekhara Sastry, AIR 1981 Supreme Court 1143 that the provisions of Section 11 of the Code of Civil Procedure were applicable to matrimonial proceedings by virtue of Section 21 of the Hindu Marriage Act, 1955.
10. As such, it is argued that the opposite party having once availed of the provisions of Section 25(2) of the 1955 Act, which merged in the order of the Supreme Court dated April 19, 2017, could not file a further application under the same provision. Since the subsequent application was already pending when the Supreme Court decided the matter, the same was barred by the principle of res judicata.
11. Learned counsel for the opposite party-wife submits that the second application under Section 25 pertained to subsequent developments which took place much after the previous application (which was decided by the Supreme Court) was filed. As such, there were changed circumstances and the principle of res judicata did not apply.
12. Moreover, it is argued that since the two applications under Section 25 of the 1955 Act arose from different proceedings, one under Section 10 of the 1955 Act and the other under Section 13 of the s
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