Madras High Court
P.Karuppiah vs Alagammal on 16 December, 2022
C.M.A(MD)No.275 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.12.2022
CORAM
THE HON'BLE DR JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR JUSTICE SUNDER MOHAN
C.M.A(MD)No.275 of 2020
P.Karuppiah .. Appellant/Respondent
/petitioner-husband
Vs.
Alagammal .. Respondent/Petitioner
/Respondent-wife
Appeal filed under Section 19 of the Family Court Act, praying this
Court, to set aside the fair and decreetal order dated 24.07.2018 passed in
I.A.No.368 of 2017 in H.M.O.P.No.175 of 2016 on the file of the Family
Court, Dindigul.
For Appellant :Mr.P.Saravanakumar,
for Mr.M.Siddharthan
For Respondent :Mr.Babu Rajendran
Page 1 of 6
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C.M.A(MD)No.275 of 2020
JUDGMENT
DR G.JAYACHANDRAN,J.
and
SUNDER MOHAN,J.
The short point involved in the appeal is whether the second petition
filed by the husband for divorce on the ground of cruelty and desertion,
after his earlier petition filed on the ground of adultery, cruelty and
desertion got dismissed for default, will act as res judicata.
2.The parties got married, on 09.06.1978 and they begotten three
children. Thereafter, difference of opinion has crept up between them, the
husband has filed H.M.O.P.M.10 of 1998 before the Principal Sub-Court,
Dindigul, on the ground of cruelty, adultery and desertion. This petition had
a checkered history of dismissal of default, restoration and again ex-parte
decree, setting aside the ex-parte decree and so on and so forth. At last,
when the said H.M.O.P.No.10 of 1998 posted for trial, the husband, who is
the petitioner, did not turn up for cross-examination, leading to dismissal of
H.M.O.P, on 08.09.2005. After some time, the husband tried to restore his
petition with condone delay application for restoration.
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C.M.A(MD)No.275 of 2020
3,While being so, the second petition for divorce on the ground of
cruelty and desertion was filed on 08.12.2016 and it was taken on file in
H.M.O.P.No.175 of 2016. The respondent herein filed an application in
I.A.No.368 of 2017, under Order 7 Rule 11(d) and Section 12 of C.P.C., to
reject the petition. Counter affidavit filed and both sides were heard by the
Family Court, Dindigul and at last, I.A.No.368 of 2017 filed for rejection of
the petition filed under Order 7 Rule 11(d) and Section 12 of C.P.C., was
allowed. The said order is challenged by the husband in this Appeal.
4.On perusing the records and comparing the earlier petition filed in
H.M.O.P.No.10 of 1998 and the subsequent petition filed in H.M.O.P.No.
175 of 2016 in just a position, this Court finds the following difference.
Firstly, in the earlier petition, it is pleaded that the respondent is living in
adultery. The said allegation is raising in the subsequent petition. New
incident of cruelty is being narrated in the petition, in Paragraph Nos.16, 18
and 19, which alleged to have been occurred on 20.02.2021, 23.02.2016 and
10.11.2016. When the respondent alleged to have gone to the shopping
complex owned by the appellant, she caused reckless. Alleging that the
cruelty being perpetual one and desertion as a cause of action, the second
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C.M.A(MD)No.275 of 2020
petition for divorce is filed. The trial Court, while considering the
application to reject the petition as resorted to Order 23 Rule 1 of C.P.C.,
held that the appellant has not obtained leave of the Court before
withdrawal or abandon of his claim in the earlier proceedings.
5.A perusal of the records indicates that the earlier proceeding was
dismissed, after non-prosecution of the appellant and the present H.M.O.P is
not on the same cause of action, but on the different cause of action, which
has arisen after the dismissal of the earlier petition. Therefore, the dismissal
of the previous divorce petition cannot act as res judicata for the subsequent
petition. When fresh cause of action has been pleaded, it is a matter of trial
whether the alleged fresh cause of action is true or not. But the threshold,
the trial Court cannot throw away the petition on the ground of res judicata,
when there is a plea in the petition, which prima facie sufficient to take the
petition on file for the fresh cause of action.
6.The learned counsel appearing for the respondent has made a
meticulous research on the line and has circulated a judgment of
Chhattisgarh, wherein the High Court has held that the subsequent petition
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C.M.A(MD)No.275 of 2020
for divorce on the ground of cruelty and desertion is not maintainable, when
there is no fresh cause of action pleaded in their plaint. On facts, in the
present case, there are fresh incidence of cruelty pleaded in the plaint.
Therefore, Order 7 Rule 11(d) and Section 12 of C.P.C cannot be invoked to
reject the petition. When specific incident of cruelty being pleaded in the
petition, it is to be decided in the trial. Neither Order 7 Rule 11(d) and
Section 12 of C.P.C., or Order 23 Rule 1 of C.P.C., relied upon by the Court
below is applicable to the facts of the case. Hence, the judgment of the Trial
Court is set aside. The trial Court is directed to restore the H.M.O.P on file.
The Family Court, Dindigul shall give priority to this case and complete the
trial as early as possible, taking note of the fact that the supporting parties
are senior citizens.
(G.J.,J.) (S.M.,J.)
16.12.2022
Index:Yes/No
Internet:Yes/No
Ns
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.275 of 2020
DR G.JAYACHANDRAN,J.
and
SUNDER MOHAN,J.
Ns
To
1.The District Judge,
Family Court,
Kanniyakumari District,
Nagercoil.
2.The Section Officer,
VR Section,
Madurai Bench of Madras
High Court,
Madurai.
C.M.A(MD)No.275 of 2020
16.12.2022
https://www.mhc.tn.gov.in/judis
