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KERALA HIGH COURT
C.K. Abdul Rehim and T.V. Anilkumar, JJ.
Sunil Kumar K. —Petitioner
versus
Prasobha Devi D. and Anr. —Respondents
Mat. Appeal No.383 of 2016
Decided on 6.3.2019
For the Petitioner:Smt. S. Sindhu and Sri. A.D. Shajan, Advocates
For the Respondent No.1:Sri. Brijesh Mohan and Smt. Resmi G. Nair, Advocates
For the Respondent No.2:Sri. K. Jaju Babu (SR.) and Sri. Shajin S. Hameed, Advocates
IMPORTANT POINT
Bar under Order II Rule 2 of CPC is incapable of any application to a proceeding instituted for dissolution of marriage.
Headnote:(A) Hindu Marriage Act, 1955 – Section 13 – Civil Procedure Code, 1908 – Order II Rule 2 – Application for dissolution of marriage – Even assuming that ground for adultery existed and accrued to appellant at the time of institution of former O.P. also, no law could compel him to sue for dissolution of marriage on ground of adultery, besides other grounds of cruelty and desertion, against his choice – Whether a particular statutory ground ought to be invoked in a proceeding for divorce or reserved or postponed is left to absolute choice of party suing for relief – Many reasons may weigh with spouse seeking dissolution for choosing or not choosing a analoparticular ground in proposed proceeding – Ground being within absolute wisdom of parties, he or she is not bound to explain reason for his choice to anyone including matrimonial court – If he avoids to sue on any one of grounds for his own reasons, Order II Rule 2 of the Code will not step in and bar subsequent institution of a proceeding for dissolution upon a new ground – Dissolution is an independent and complete relief in itself under Act, 1955 – Bar under Order II Rule 2 of Code can seldom apply to an action for dissolution of marriage unlike actions arising out of disputes between spouses relating to money and property claims – Dissolution is not a claim or relief identical with a claim or relief relating to money and property – Bar under Order II Rule 2 of Code is incapable of any application to a proceeding instituted for dissolution of marriage. (Paras 8, 9 and 10)
(B) Civil Procedure Code, 1908 – Order II Rule 2 – Hindu Marriage Act, 1955 – Section 13 – Bar on subsequent suit – Application for dissolution of marriage – Grounds for dissolution in matrimonial matters are of continuing or recurring nature – Spouse who suffered dismissal of original petition for dissolution of marriage on ground of cruelty, desertion and adultery is not precluded from suing again for dissolution on same grounds, provided relief is founded on new facts – Each independent and different ground under Act, 1955 creates different causes of action for dissolution of marriage – When relief for divorce is same in former and subsequent proceeding, despite grounds chosen by party being different, no question of bar under Order II Rule 2 could apply at all. (Paras 10 and 12)
Appeal allowed.
T.V. Anilkumar, J.—The appellant is the husband, the petitioner in O.P.No. 1921/2013 filed by him before the Family Court, Thiruvananthapuram, for dissolution of his marriage with the 1st respondent, the wife, by invoking the grounds of cruelty, desertion and adultery, under provisions of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’). The 1st respondent, after entering appearance, questioned maintainability of the O.P. on the ground of bar of res judicata, because of the dismissal of the former O.P.No.687/2012 filed by him before the Family Court, Nedumangad on identical grounds. O.P.No.687/2012 was dismissed on 11.7.2013 by the Family Court on merits. Accepting the objection raised against maintainability of the original petition, I.A.No.2706/2014 filed by the 1st respondent assailing maintainability of the O.P. and seeking dismissal of the O.P. itself on a preliminary issue, was allowed. The impugned order, dated 12.1.2016 in I.A.No.2706/2014 is challenged before us in this appeal by the aggrieved husband.
2. The 1st respondent/wife was married to the appellant on 7.5.2006. A child was born to the spouses. When their relationship strained, the appellant filed O.P.No.640/2009 before the Family Court at Thiruvananthapuram for dissolution of marriage, invoking the grounds of cruelty and desertion under the Act, 1955. Later, O.P.No.640/2009 was transferred to the Family Court, Nedumangad, where it was re-numbered and tried as O.P.No.687/2012. The 2nd respondent in this appeal is the husband of 1st respondent’s own sister, who is the so called adulterer. He had not, however, been impleaded in the O.P.No.687/2012.
3. There was an M.C.No.375/2012 filed by the 1st respondent against the appellant under Section 125 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’) where the appellant denied paternity of the child and disowned the liability to maintain the mother and the child. During the course of trial of O.P.No.687/2012, the appellant made allegations against the 1st respondent that she was leading an adulterous life with the aforesaid brother-in-law. The Family Court, Nedumangad, after appreciating the evidence on record, dismissed O.P.No.687/2012 refusing to accept the contentions of the appellant based on any of the grounds including adultery. The court specifically held in paragraph 9 of the judgment, dated 11.7.2013 that, the mere act of her travelling along with the brother-in-law in a car in connection with the illness of her mother by itself will not constitute adultery.
4. The appellant, being aggrieved by the judgment dated 11.7.2013, filed a Mat.Appeal before this court captioned as Mat.Appeal No.606/2013, and that too was dismissed on 24.9.2013 confirming the decision of the lower court. But while confirming the finding of the lower court as to adultery, this court held that, so long as the issue of adultery did not arise from the pleadings of the parties for consideration, the finding entered thereon was quite uncalled for and erroneous especially when the adulterer was not impleaded as co-respondent in compliance with Rule 7 of the Hindu Marriage (Kerala), Rules, 1963. The finding of the trial court as to adultery was impliedly undone in the Mat.Appeal aforesaid. This court, however, refused to interfere with the dismissal of O.P. probably because finding entered on other grounds did not warrant any interference.
5. Insofar as no definite finding on the issue as to adultery survived after disposal of the Mat.Appeal No.606/2013, we fail to understand as to how the trial of the subsequent O.P.No.1921/2013 could be said to be barred by res judicata. A subsequent proceeding could be said to be barred by res judicata only when a definite finding on an issue which directly and substantially arose in the former proceeding was finally decided by the court. When no such final decision has been arrived at in the former proceeding on a matter which, in fact did not arise out of the
