Sumitra Devi vs Gauri Shankar

Ravindra Maithani, J

The instant appeal is preferred against order dated 29.06.2018 passed in Civil Matrimonial Suit No. 61 of 2018, Shri. Gauri Shankar Vs. Smt. Sumitra Devi by the Court of learned Family Judge, District Almora (for short "the case"). By the impugned order, an application filed under Section 11 of the Code of Civil Procedure, 1908 (for short "CPC") read with Order 7 Rule 11 CPC has been rejected.

The facts necessary to resolve the controversy are in a very short span. The respondent filed a suit for divorce on the ground of desertion and cruelty. During hearing of the case, an application under Section 11 read with Order 7 Rule 11 CPC was moved by the appellant with the averments, therein, that earlier also the respondent had filed suits for divorce, on the ground of desertion. The first suit was Matrimonial Case No. 22 of 2004 which was dismissed on 21.04.2005. Thereafter, the respondent filed a Matrimonial Suit No. 20 of 2012 which was decided on 19.12.2013 and the court held that the suit was barred by the principle of res-judicata. The third Matrimonial Suit No. 19 of 2019 was filed by the respondent which he withdrew on 24.05.2018 with the permission to file fresh suit. Therefore, according to the application, the petition for divorce filed by the respondent in the case was barred by the principle of res-judicata. Learned court below after hearing the parties rejected the application. The court held that the period of desertion in earlier suit was distinct, therefore, the case cannot be said to be barred by the principle of res-judicata. Aggrieved by it, the appeal has been preferred.

Learned counsel for the appellant would argue that the first Matrimonial Suit No. 22 of 2004 was filed by the respondent on the ground of desertion but it was dismissed on 21.04.2005. The second Matrimonial Suit No. 20 of 2012 filed by the respondent for divorce, was dismissed on the ground that it is barred by the principle of res-judicata. Third Matrimonial Suit No. 19 of 2018 was again filed by the respondent on the ground of desertion but it was withdrawn by him on 24.052018. Learned counsel would argue that on the same ground successive divorce petitions are not maintainable? It would be against the concept of finality of the judgment. According to learned counsel, the petition for divorce filed by the respondent is clearly barred by the principle of res-judicata, therefore, the application filed by the appellant under Section 11 read with Order 7 Rule 11 CPC ought to have been allowed by the learned court below. Therefore, the appeal may be allowed.

In support of his contention, learned counsel for the appellant placed reliance on the principles of law as laid down by the Punjab and Haryana High Court, in the case of Suresh Kumar Vs. Santosh (FAO No. M-266 of 2011). In that case a petition for divorce had earlier been dismissed on merits. When second divorce petition was filed, it was dismissed on the ground that earlier also petition for divorce was dismissed on merits. This order was upheld by the High Court of Punjab and Haryana. Judgment passed in the case of Parkash Chand Gupta Vs. Kamla Gupta AIR 1979 Delhi 33, has been distinguished in this case.

On the other hand, learned counsel for the respondent would argue that desertion is a continuous wrong and decision of earlier petition cannot bar successive petition for divorce.

In support of his contention, learned counsel has placed reliance on the principles of law as laid down in the cases of Sunil Kumar Vs. Prasobha Devi and others (Misc. Appeal No. 383 of 2016), High Court of Kerala, Shyam Lal Vs. Smt. Leelawati, AIR 2007 Raj 93 and Parkash Chand Gupta Vs. Kamla Gupta AIR 1979 Delhi 33.

In the case of Sunil Kumar (supra) the Kerala High Court, inter-alia, held that "even if same grounds are taken in the subsequent proceeding for divorce, no bar of res-judicata could apply as long as the cause of action for the subsequent proceeding remains to be different. The Court further held as hereunder:-

"12. 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."

In the case of Shyam Lal (supra) also it was held that "desertion and cruelty are continuous wrongs. What could begin as a disagreement, may turn into friction, only to transform itself into conflict. Therefore, each day would give a fresh cause of action to the wronged spouse." (Para 9)

In the case of Parkash Chand Gupta (supra) it was, inter-alia, held that if a petition for judicial separation was filed on the ground of desertion, subsequent petition for divorce on the same ground is maintainable. Even if the ground is same, the period is not the same. It was held that "the court is only concerned with the last two years and with no other period". This case has been referred to in the case of Suresh Kumar (supra) when it was distinguished on the ground that desertion was earlier not a ground for divorce but it was made a ground for divorce in the year 1976, therefore, in the successive petition for divorce such a ground could have been taken.

Undoubtedly, principle of res-judicata are applicable so that judgments may attain finality, otherwise, there will be no end to litigation. An issue which has been decided finally in a former suit should not be agitated again.

In the case of Guda Vijayalakshmi Vs. Guda Ramachandra Sekhara Sastry, AIR 1981 SC 1143, the Hon'ble Supreme Court, inter-alia has held as hereunder:-

"Res judicata, after all, is a branch or specie of the Rule of Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law. (See: Canadian and Dominion Sugar Co., Ltd. v. Canadian National (West Indies) Steamships, Ltd. AC 46, at p. 56 (P. C.)."

(para no.3)

Desertion is a ground for divorce under Section 13 (1) (i-b) of the Hindu Marriage Act, 1955 (for short "the Act"). It is as hereunder:-

"13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petitioner: or"

...........................................................................................................................................................................................................................................................................

A bare perusal of sub-section 1 (i-b) of Section 13 of the Act reveals that desertion should be for a continuous period, of not less than two years, prior to presentation of the petition for divorce.

What is desertion? In the case of Lachman Utamchand Kirpalani Vs. Meena @ Mota, AIR 1964 SC 40, the Hon'ble Court, inter-alia, held as hereunder:-

".............. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid .................. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both interior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. ..............................................................."

(para no. 17)

(emphasis supplied)

Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.

The Hon'ble Supreme Court in the case of Savitri Pandey Vs. Prem Chandra Pandey, (2002) 2 SCC 73 has held as hereunder:-

"........................Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case......................................................................

......................... Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts has to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. ............................................................................................................................................"

(para no. 8)

Desertion is physical as well as mental act. Physical act is of separation and mental action is intention to bring cohabitation permanently to an end (animus deserendi). Insofar as intention is concerned, it has to be gathered from the attending circumstances. Under this legal framework, the instant case will be examined.

The proceeding of the case is based on a petition for divorce filed by the respondent which is Matrimonial Petition No. 61 of 2018. Prior to it, three petitions had been filed by the respondent on the ground of desertion. Their details are as hereunder:-

first petition for divorce

It was Original Suit No. 22 of 2004, Gauri Shankar Vs. Smt. Sumitra Devi. It was filed on the ground of desertion for a period of continuous three years, prior to presentation of the petition.

The first petition was decided on 21.04.2005 and the petition was dismissed. The Court observed that "there is no such oral or documentary evidence in support of the contentions of either party but since, it is the petitioner, who has approached the court therefore, it is his duty to establish his case from all corners, but certainly petitioner has not proved it. As such in want of any oral or documentary evidence in support of the allegation raised by petitioner, petitioner's suit for divorce has no merit and there is no option left except to dismiss the suit."

second petition for divorce

Second petition for divorce was filed in the year 2012, it was Original Suit No. 20 of 2012. It was filed on the ground of desertion for a period of 11 years. The second petition was decided on the basis of preliminary Issue No. 3. On 19.12.2013, the Court held that, since first petition for divorce filed by the respondent had already been dismissed, therefore, the second petition is barred by the principle of res-judicata.

third petition for divorce

Third petition was filed by the respondent in the year 2018, on the ground of desertion for a period of 17 years. It was Original Matrimonial Suit No. 19 of 2018. It was withdrawn by the respondent on 24.05.2019 with the liberty to file fresh suit.

Thereafter, again petition for divorce was filed by the respondent on the ground of desertion. Appellant filed a copy of the present petition for divorce, which is annexure no.1. In para 16 of it, the respondent writes that after 2013, when the second petition for divorce was decided, the respondent tried to bring back the appellant with him. Respondent visited the appellant but the appellant ignored him. In para 17 also averments have been made to the effect that the appellant had deserted the petitioner for a continuous period of five years. There had been no cohabitation. The respondent also did not allow the appellant to meet his daughter. These averments had never been leveled by the appellant in his earlier petitions for divorce.

This has to be considered with regard to the concept of desertion. It's a continuous process each passing moment gives new cause of action. It's a continuous matrimonial wrong.

In the case of Sunil Kumar (supra) Kerala High Court has held that on the ground of desertion, fresh petition may be filed for divorce, provided the relief is based on new facts. It was further held that when the cause of action is continuous and recurring in nature, subsequent litigation for divorce brought on the same ground is not barred by res-judicata. Although, in the case of Suresh Kumar (supra), the dismissal of second divorce petition was upheld and the judgment given in Parkash Chand Gupta (supra) has been distinguished. In fact, in Prakash Chandra Gupta case (supra), the subsequent petition for divorce was held maintainable, on the ground that the period of desertion is different, it was held that "marriage is living relationship, in which various factors may alter from time to time. Hence, if at any given time desertion may not be accountable, it may be accountable at some other time, depending upon the application of explanation appended to the Section." (Para 8)

The first petition for divorce filed by the respondent was dismissed in the year 2005, when neither party adduced any evidence. That petition was simpliciter on the ground of desertion. The second petition was held barred by the principle of res-judicata. The third petition was withdrawn and it is the fourth petition, which gives rise to the instant case. The respondent has categorically stated that after 2013, when second petition for divorce was dismissed on the ground of being barred by the principle of res-judicata he went to get the appellant back with him, he was ignored, the appellant did not allow him to meet his daughter. These are additional facts. These facts definitely give new cause of action. Desertion and reasons for staying apart, with the intention of bringing the cohabitation to an end permanently, are factual aspects. If in the year 2004 or 2012 it could not be proved that the appellant is staying apart without reasonable cause, it cannot be said that it will cover each and every contingency that might arise in future.

In the instant case, the circumstances are changed. The respondent in the latest petition for divorce has categorically stated that he tried to bring back the appellant with him but he was ignored and even not allowed to meet his daughter. Therefore, this continuous wrong of desertion, coupled with the new facts, as stated by the respondent, in his petition for divorce, gives a fresh cause of action to the respondent to file the petition. The reasons of staying apart by the appellant for two years prior to filing of the petition are required to be looked into. Whether the respondent really attempted to bring back the appellant with him? Had there been sincere efforts on the part of the respondent to live together with the appellant? These and many more related questions need to be answered. The period is different from the period in question in the earlier petitions. Therefore, this Court is of the view that the petition filed for divorce by the respondent is not barred by the principle of res-judicata and the learned court below did not commit any error in rejecting the application under Section 11 and Order 7 Rule 11 CPC filed by the appellant. Accordingly, this Court is of the view that the appeal deserves to be dismissed.

The appeal from order is dismissed.

No orders as to costs.