First divorce petition withdrawn then second petition filed, is it valid?

[Anonymous]

My wife filed a divorce petition on the ground of cruelty. I fought against it. But, she withdrew this divorce petition, perhaps realising that the charge of cruelty may not stand. Now, after 6 months she has again a fresh divorce petition on the ground of cruelty. Can she file such petition again? Some advocate told me that the res judicata will not apply to a divorce petition and I cannot get it dismissed on the ground of previous petition alone and I have to fight it again. Please advise.

[Dr. Ashok Dhamija]

The issue of res judicata has been dealt with in Section 11 of the Civil Procedure Code (CPC). The principle of res judicata basically means that: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

Please mark the last few words: “…has been heard and finally decided by such Court”. This is an essential condition for applying the principle of res judicata, i.e., the previous matter must have been heard and finally decided by the court.

The facts stated by you show that your wife had withdrawn the previous divorce petition, which imply that the previous petition was NOT heard and finally decided by the court. This means that the principle of res judicata may not apply in this case and your advocate appears to have advised you correctly.

At the same time, I may hasten to add that one should also keep Order 23 of the CPC in mind which relates to withdrawal of a suit. Whether the withdrawal was absolute or whether a liberty was given by the court to file a fresh suit after withdrawal, may also have to be seen.

Further, one may also have to consider the fact that in a matrimonial dispute, there may be a continuing wrong on the basis of which divorce may be sought, or otherwise, there may be a fresh wrong which may give rise to a fresh cause of action. Thus, for example, there may be a continuing cruelty (which may have continued to happen even after withdrawal of the previous divorce petition) or there may be a fresh cruelty (after the previous divorce petition), which may give a fresh cause of action for filing a fresh divorce petition.

So, all these factors have to be considered in each matter depending on the facts and circumstances of the case. In the absence of knowledge of the full facts of the case, it may not be advisable for me to say anything more, other than the above general principles. Yes, of course, I may add that you should be prepared to fight the fresh case on its own merits.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Rashmi Bansal]

thanks for the valuable advice.
Sir , in addition to this, please inform that what will be effect
1. if the petition for divorce has been withdrawn without liberty granted by the court to file fresh one? this is simply withdrawn.
2. if the petitioner has not reunited wd the respondent and thus not given rise any new ground of action for divorce? then also second petition will survive ?

[Dr. Ashok Dhamija]

If the divorce petition has been simply withdrawn without the court giving any liberty to file a fresh divorce petition, then also a fresh divorce may be possible if there is a fresh cause of action or if there is a continuing wrong or cause of action (such as continuing cruelty or continuing of any other ground on which divorce is sought).

Your second question appears to be arising out of a feeling that if the petitioner has not reunited with the respondent, and if they are not living together, then how would a fresh or continued ground of cruelty could be made out. However, please note that under Section 13 of the Hindu Marriage Act, divorce can be sought on many grounds and some of these grounds do not require living together (in fact, sometimes, the opposite may be true) or cruelty.

For example, divorce can be sought on the grounds of:

• voluntary sexual intercourse with any person other than his or her spouse; or
• treated the petitioner with cruelty; or
• has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
• has ceased to be a Hindu by conversion to another religion; or
• has been incurably of unsound mind, or has mental disorder of a serious kind, etc., or
• has been suffering from a virulent and incurable form of leprosy; or
• has been suffering from venereal disease in a communicable form; or
• has renounced the world by entering any religious order; or
• has not been heard of as being alive for a period of seven years or more, etc.;

Therefore, even if husband and wife have not reunited and not living together, one or more of these grounds may come into existence afresh or may continue to exist. And, it may thus be possible to file a fresh divorce petition even if the parties did not reunite after withdrawal of the first divorce petition. Of course, it will depend on the facts and circumstances of each individual case and no hard and fast rule can be laid down.

In fact, even the ground of cruelty may continue to exist or may give rise to a new cause of action despite the fact that the parties are living separately. For example, it has been held that filing false cases against the spouse may amount to cruelty. Having sexual intercourse with a person other than the spouse may also amount to cruelty. These are just a few examples. Such types of cruelty may not depend on the living together of husband and wife.

In this regard, it is pertinent to point out that in the case of K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court held as under:

“In our opinion, the High Court wrongly held that because the appellant husband and the respondent wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse’s life miserable. This is what has happened in this case.”

Therefore, even if both parties are living separately after the withdrawal of the first divorce petition, a fresh cause or action or a continuing cause of action may still arise on the basis of which a fresh divorce petition may be filed. As I mentioned earlier, of course, it will all depend on the facts and circumstances in each individual case. No hard and fast rule can be laid down.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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