Fresh divorce petition shall be barred if converted mutual divorce petition disposed?
Law Querier
(Querist) 31 October 2015
This query is : Resolved
Earlier petitioner filed a divorce petition(X) (u/s. 13(1) (i a) of Hindu Marriage Act) under the ground of cruelty in the family court. Then after, the contested divorce petition(X) was converted into mutual consent divorce petition(Y) (u/s.13B of H.M. Act) by the consent of both the parties. After that the respondent withdrew his consent from the mutual consent divorce petition(Y). So, the petition(Y) had been disposed by the Court.
When the contested divorce petition(X) was converted into mutual consent divorce petition(Y) and when the mutual consent divorce petition(Y) is disposed by the judge, the petitioner had not sought permission from the court to file the fresh divorce petition in future and the court has not granted permission to the petitioner to file the fresh divorce petition in future (Z) according to Order 23 Rule 3 & 4 of CPC.
Then, the petitioner did not approach to high court in time limitation. But, the petitioner has filed a fresh contested divorce petition (Z) (u/s. 13(1) (i a) of H.M. Act) in the same family court by mentioning same old allegations with adding the new allegation and mentioning the different cause of action than the earlier pettion(X) that, "the act of respondent for earlier converted the contested divorce petition converted into consent divorce petition and then after withdrawal of consent from the M.C.D. petition(Y) has treated petitioner with cruelty". The Relief claimed by the petitioner in fresh divorce petition (Z) is as same as the relief claimed in older divorce petition (X).
1. Can the petitioner be precluded from instituting this fresh suit under fresh divorce petition (Z) and Can the petitioner be liable for such cost as the court may award according to Order 23 Rule 3,4 of C.P.C?
2. Can this new suit under fresh divorce petition (Z) be barred under Section 10 of C.P.C (Res sub judice)?
3. If answer of question 1 or/and 2 is in positive then what other remedy available for petitioner if he/she wants to divorce from respondent?
Anirudh
(Expert) 31 October 2015
Divorce petition like bail application can be filed any number of times.
There is no liberty required for filing fresh divorce petition.
In the above given facts, one can go in for fresh divorce petition
Nadeem Qureshi
(Expert) 31 October 2015
Dear Querist
My opinion on your queries are as under:
1. Can the petitioner be precluded from instituting this fresh suit under fresh divorce petition (Z) and Can the petitioner be liable for such cost as the court may award according to Order 23 Rule 3,4 of C.P.C?
Opinion: Fresh petition for divorce is maintainable with new cause of action along with the previous cause of action.
2. Can this new suit under fresh divorce petition (Z) be barred under Section 10 of C.P.C (Res sub judice)?
Opinion: No, the new petition is not barred as per section 10 of CPC.
3. If answer of question 1 or/and 2 is in positive then what other remedy available for petitioner if he/she wants to divorce from respondent?
Opinion: The answer of the above points are in negative.
Feel Free to Call
Rajendra K Goyal
(Expert) 31 October 2015
Agree with the advice from expert Nadeem Qureshi.
