RAM KALAN Vs. PURSHOTAM ALIAS MINTU

JUDGEMENT

(1.) The appellant-wife has approached this Court by way of instant appeal filed under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 10.9.2010 passed by the learned District Judge (Family Court), Bhiwani whereby the petition filed under Section 13(1)(ia)(ib) and 2(iv) of the Hindu Marriage Act, 1955 (in short "the Act") by the wife for dissolution of marriage by a decree of divorce, was dismissed.

(2.) Briefly stated, the facts necessary for adjudication of the present appeal as narrated therein are that the marriage between the parties was solemnized on 15.6.1994 at village Rambas, Tehsil Charkhi Dadri, District Bhiwani as per Hindu rites and ceremonies. Both the parties mutually agreed to separate each other by an agreement dated 15.5.2008 and thus, their relationship as husband and wife came to an end. Thereafter, the appellant filed a petition for divorce. During the pendency of the divorce petition, the father of the appellant died and due to non-appearance, the divorce petition was dismissed in default on 6.6.2009. The appellant filed another petition for divorce on 8.9.2009. The Family Court vide order dated 10.9.2010 dismissed the petition holding the same to be barred under Order 9 Rule 9 of the Code of Civil Procedure (hereinafter referred to as "the Code"). Hence, the present appeal.

(3.) Learned counsel for the appellant submitted that the earlier petition seeking divorce was filed on 22.7.2008 and the same was dismissed in default. Since the earlier petition was not decided on merits and the present petition was filed on the continuous cause of action and, therefore, the fresh petition filed on 8.9.2009 was maintainable. It was also urged that a written agreement dated 15.5.2008 was executed between the parties whereby socially the marriage stood dissolved. According to the learned counsel, the trial court was in error in dismissing the petition on the ground that the same was not maintainable.