PREETI MALA Vs. DINESH

JUDGEMENT

(1.) The petitioner is the wife of the respondent. She has approached this Court through this petition filed under Article 227 of the Constitution challenging an order dated 17.12.2019 passed by the Additional Principal Judge, Family Court, Sonepat dismissing her application under Order VII Rule 11 CPC that the fresh petition is not barred by law.

(2.) The facts bring out that earlier, the respondent-husband filed a divorce petition under Section 13 of the Hindu Marriage Act seeking decree of divorce against his wife. However, the said petition was dismissed as withdrawn on 16.11.2012 in view of the statement suffered by the husband-respondent in court. Four years later in 2016, he filed a fresh petition, which is pending trial in the Family Court at Sonepat. In this petition, the petitioner-wife moved an application under Order VII Rule 11 CPC on the ground that the earlier petition was dismissed as withdrawn on the statement of the respondent-husband, but he did not take the liberty of the court to file a fresh one and, therefore, the divorce petition on the same cause of action is barred by the principles of res judicata. This application stands dismissed by the order impugned in this revision petition for the reasons recorded in writing making way for the trial to proceed on merits.

(3.) The stand of the respondent-husband before the Family Court was that his earlier petition was not decided on merits of the disputes. Moreover, the cause of action was also different and not entirely the same. The learned Additional Principal Judge, Family Court, Sonepat considered the issue and she found that the parties were at variance and arrived at the conclusion that the husband could file a second petition for divorce on subsequent acts of cruelty by the wife. This was a matter of evidence whether or not the husband has any cause of action to file a petition, which cannot be decided summarily as it involves mixed questions of fact and law. She proceeded to dismiss the application finding no merit therein. In making this order, she applied the judgment of the Division Bench of this Court in Satwant Kaur Vs. Baljinder Singh, 2017 3 RCR(Civil) 633 : 2016 (2) LAR 680 holding that husband can file second petition for divorce based on subsequent acts of cruelty by the wife.