JUDGMENT

MANOJ JAIN, J.

1. Appellant has challenged order dated 25.07.2022 whereby her application under Section 151 CPC filed in HMA petition No.1367/2019 titled as Ankit Jain vs. Nidhi Jain has been dismissed by learned Judge, Family Court, North District, Rohini, Delhi.

2. Appellant got married to respondent on 16.02.2012 as per Hindu rites and customs. However, their marriage was in turmoil and the matrimonial discord between the two resulted in filing of various cases by them, against each other.

3. Presently, we are concerned with HMA petition No.1367/2019 filed by the respondent whereby he has sought dissolution of marriage on account of cruelty. Said petition is pending adjudication and the trial is yet to begin.

4. It needs to be highlighted that the respondent had earlier also filed two petitions seeking dissolution of marriage. One such petition was filed on 15.12.2012 which was registered as HMA 594/2012. By virtue of said petition also, he had sought divorce but it was dismissed at the very threshold, being barred under Section 14(1) of Hindu Marriage Act, 1955(in short HMA) as it had been filed within one year of the marriage and no instance of any exceptional hardship to him or exceptional depravity on the part of his wife could be brought on record.

5. Thereafter, respondent filed one more petition seeking divorce on the ground of cruelty on 23.03.2013. Said petition was registered as HMA No.219/2013. For the sake of convenience, said petition would be hereinafter referred to as “the previous petition.” He sought divorce citing several grounds of cruelty allegedly attributable to his wife. The previous petition was contested by the Appellant/wife. Issues were framed and the case was put to trial but before the conclusion of the trial, respondent withdrew the same on 07.04.2016. Respondent personally appeared before the concerned court of learned Principal Judge, South West District, Dwarka, New Delhi and withdrew the same.

6. After the withdrawal of the previous petition on 07.04.2016, respondent again filed a petition seeking divorce on the same ground of cruelty under Section 13 (1) (ia) of HMA. In his such petition (hereinafter referred to as the new petition), he did divulge that he had previously filed a divorce petition, which was withdrawn by him. He, however, claimed that the petition was withdrawn by him as he was fed up of legal battles between him and his wife. In the new petition, he, inter alia, also claimed he had not condoned any act of cruelty.

7. Appellant contested the new petition also and filed written submission-cum-reply refuting the averments made in the petition as well taking certain objections.

8. During the pendency of the new petition, appellant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that the new petition was based on the same cause of action which had been averred by the respondent when he had filed the previous petition seeking divorce in the year 2013. She claimed that since the previous petition was withdrawn by him unconditionally and without assigning any reason whatsoever, he was barred by law from filing a fresh petition on the same cause of action. It was also contended that when the previous petition was withdrawn by him, he had neither sought nor was granted any liberty to file a fresh petition on the same cause of action and, therefore, his act of filing the new petition was a clear abuse of process of law and thus, the new petition was liable to be dismissed.

9. Learned Trial Court noticed that the previous petition had also been filed on the similar grounds but observed that in the new petition, respondent had come up with new set of allegations as there was mention of one incident dated 14.12.2016. Holding that such incident dated 14.12.2016 was not then available to the petitioner, as the previous petition had been withdrawn on 07.04.2016 and also after making reference to other facts of the case, the learned Trial Court di