ORDER:

(Per Hon(cid:146)ble Dr. Justice Chillakur Sumalatha)

The present appeal arises out of the order that is rendered by the Family Court, Mahabubnagar, in F.C.O.P.No.23 of 2014 dated 21.07.2016.

2. The appellant herein filed a petition before the Family Court, Mahabubnagar, for dissolution of marriage. The Family Court, which dealt with the matter, negatived the request of the appellant/petitioner. Aggrieved by the same, the present appeal is preferred.

3. Sri K.Sreenivas, learned counsel for the appellant submits that the appellant intends to withdraw the appeal with a liberty to file a fresh O.P. seeking dissolution of marriage invoking the grounds of desertion and other allied grounds. Learned counsel submits that the cause of action in matrimonial matters is a continuous one and, therefore, the parties cannot be precluded from filing successive applications basing on facts and circumstances, however, changed. In this regard, learned counsel relied upon the decision of the Division Bench of High Court of Kerala in the case of Sunil Kumar K vs. Prasobha Devi D1, wherein at Paragraph No.12 of the order, the following observation is made:

(cid:147)So far as grounds for dissolution in matrimonial matters are concerned, they are of continuing or recurring nature. A spouse who suffered dismissal of original petition for dissolution of marriage on the ground of cruelty, desertion and adultery is not precluded from suing again for dissolution on the same grounds, provided the relief is founded on new facts. Cause of action means a bundle of facts constituting the right of a party which he has to establish in order to obtain a relief from a Court. The facts which constitute the grounds of cruelty, desertion or adultery as the case may be, are likely to vary giving rise to different causes of action depending on the facts and circumstances of each case. When cause of action is of continuing and recurring nature, the subsequent litigation for divorce brought on same grounds disregarding the dismissal of former O.P. will not be barred by res judicata.(cid:148)

4. Learned counsel for the appellant submits that the appellant may be permitted to move an application again for dissolution of marriage on the subsequent and new facts and the cause of action, which arose from the date of marriage and

1 2019 (2) DMC 539 also subsequent to the dismissal of application filed for grant of divorce.

5. Having convinced with the submission thus made, and as learned counsel for the appellant states that basing on new set of facts and continuous cause of action he would be preferring another application for grant of divorce, we are of the view that the permission, as prayed for, can be accorded.

6. Resultantly, the Family Court Appeal is dismissed as withdrawn. Liberty is granted to the appellant to move a fresh application before the concerned Family Court for dissolution of marriage on new facts and continuous cause of action. No costs.

7. As a sequel, pending miscellaneous applications, if any, shall stand closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA ______________________________ Dr. JUSTICE G.RADHA RANI Date: 13.04.2023 svl