The court upheld that the dismissal of a prior divorce petition does not preclude the filing of a new petition if circumstances change, affirming the right to seek legal remedies.

Devan Ramachandran, J.

The appellant filed O.P.No.619/2020 against the respondent seeking divorce; but she did not press it, consequent to which it was dismissed by the learned Family Court, Kasaragod, recording that she had given no instruction to her counsel to proceed with the matter. She concedes to this and explains that she had authorised her advocate not to press the matter only because she was given an assurance by the respondent that they would live together again.

2. The appellant says that, however, when the respondent resiled from his afore said undertaking, she filed O.P.No.156/2023 seeking restitution of conjugal rights, which was allowed 27.07.2023; but that the said respondent was not ready to live with her. She says that she had, therefore, no other option but to file RPIA.No.78/2023 to restore the Original Petition, which was accompanied by I.A.No.1/2023 seeking that the delay of 600 days in filing the former application be condoned; but that, the learned Family Court has now dismissed both the said applications through the impugned order, thus leaving her no option but to approach this Court through this appeal.

3. Sri.Gokul R. Nair, appearing for the appellant, submitted that his client has acted with full bonafides because, even though she sought divorce from her husband through the Original Petition, she did not press it solely because she thought that they would start to live together again, which was based on an assurance given by the latter. He says that when this hope was belied, she was constrained to file O.P.No.156/2023, seeking restitution of conjugal rights, which though allowed, has not been obeyed by the respondent. He says that, therefore, his client is justified in having approached the learned Family Court to restore O.P.No.619/2020; and contended that the impugned order is illegal.

4. We notice from the endorsements on the files that the service of summons on the respondent has been completed. However, he is neither represented through Counsel, nor present before this Court; and this was the same situation, when we heard this matter on earlier occasions.

5. We have examined the impugned order and must say upfront that we do not find it to be in error.

6. This is because, after the Original Petition was withdrawn by the petitioner, she filed O.P.No.156/2023 seeking restitution of conjugal rights, which admittedly was allowed on 27.07.2023. This intervening development indubitably now disallows the petitioner to seek restoration of O.P.No.619/2020, though she certainly has a right to file a fresh application for divorce against her husband on all grounds that may be available to her in law, including that the respondent did not comply with the decree for restitution of conjugal rights issued on 27.07.2023.

7. We fail to understand why the appellant is seeking that O.P.619/2020 should be restored, especially when she obtains a further ground, if she is to move a fresh application for divorce.

8. The afore being so said, we do not find approval with the view of the learned Family Court, as recorded in the impugned order, that the filing of the Original Petiton seeking restitution of conjugal rights by the appellant was malafide. We do not know how such an opinion could have been entered into, especially when the appellant says that she was given an assurance by her husband that he will start to live with her again.

9. Presumably being aware of the mind of this Court, Sri.Gokul R.Nair – learned Counsel for the appellant, submitted that his client will invoke her remedy of filing a fresh Original Petit