Whether Third Divorce suit Maintainable

   Sir/ Madam,

            With due regards to above title, am submitting the below application filed by me in the Family Court in the divorce proceeding filed by husband against his wife, and will be obliged to get yours kind opinion/ suggestions or any guidelines for further representation; With Regards:  

                                                                                                                                            Jasmeetsingh. 

Application to raise preliminary issues under the provisions of Rule 16 of Order: 6 along with the Rule 11 of Order 7 of Code of Civil Procedure and Clause (a) of Sub. Sec (1) of Sec 23 of Hindu Marriage Act, 1955.

The facts & circumstances from which the present dispute arises are capsualised herein below for the sake of ready reference and convenience:-

1.      That the marriage of petitioner and respondent was solemnized on 11^th May 1988 at Pune in according with the Sikh rituals.

2.      That accordingly after the solemnization of the marriage ceremony the above respondent co- habited with the petitioner at his residence located at; 759/ 60D, Prabhat Road, Near Deccan Police Station, Deccan Gymkhana, Pune: 411 004.

3.      That from the very next day of the marriage petitioner along with his family members started abusing respondent mentally for not fulfilling their dowry demands.

4.      That the petitioner instead of complying with the duties of a husband started abusing respondent for dowry. In addition on 24^th of February 1989 respondent gave birth to a son from the wedlock.

5.      That the above petitioner along with his family members on several occasions ousted respondent from her matrimonial house on failing to bring the demanded dowry from her parents.

6.      That the economic condition of respondent’sparents was delicate; moreover the heavy expenditure of marriage was incurred on respondent’s parent, this made the economic condition of respondents parents more critical; due to this reason respondent was unable to fulfill the dowry demands of the petitioner and his family. And every time parents of respondents were constrained to visit petitioners place as to convince them by showing their inability to fulfill petitioners high dowry demands and also to request petitioner to allow respondent to co-habit happily with him, but all was in vain.

7.      That the petitioner and his family members abused respondent physically and mentally every day, and were constraining her to visit her parental house again & again. The petitioner & his family members were harassing respondent.

8.      That the petitioner and his family members on 25^th January 1990 physically abused the respondent; and respondent was even obstructed to lodge a complaint against them. Finally on 30^th January, 1990 petitioner and his family members ousted respondent from her matrimonial house.  Thereafter respondent along with her parents made each and every attempt to convince petitioner to resume the co-habitation but as due to petitioner’s adamant attitude towards respondent; and respondent was told that without bringing gold and cash from her parents, she will not be allowed to stay in her matrimonial house.

9.      That petitioner on 23- 04- 1990 filed a case for grant of divorce under the provisions of Sec 13 (1) (ia) of Hindu Marriage Act, 1955 i.e. on basis of cruelty which was numbered as P.A. No: 170 of 1990 in the family court at Pune. This case was later on transferred to Honorable Civil Judge (S.D.) Shrirampur and was numbered as H.M.P No: 40 of 1991.

10.  That as the respondent was constrained to leave her matrimonial house without any just and sufficient reason, this forced respondent to approach Honorable Civil Judge (S.D.) Shrirampur by the way of filing case u/s 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights which was numbered as H.M.P. No: 58 of 1990.

11.  That both the case were clubbed together and on 12^th January, 1995 final decision in both above matters was delivered i.e. the petitioner’s case for grant divorce was dismissed with the finding that petitioner failed to prove cruelty of respondent on contrary there was ill-treatment to the respondent from the side of petitioner. The copy of that judgment and order is enclosed with the list of document and is marked as ANNEXURE “A”. And the respondent’s petition for grant of restitution of conjugal rights was passed in respondents favor with a conclusive finding that present petitioner without and just and sufficient cause withdraw to society of present respondent. The copy of that judgment and order is enclosed with the list of documents and is marked as ANNEXURE “B”.

12.  That present petitioner being aggrieved and dissatisfied from the judgment of Restitution of conjugal rights passed in H.M.P No: 58 of 1990 approached the Honorable District Court challenging the legality of the judgment of the lower court and contended in his appeal memo of Reg. Civil Appeal No: 163 of 1995 at page 3 paragraph 11: “it is not possible and is not reasonably expected from opponent (present petitioner) to co- habit with petitioner (present respondent). The copy of the said appeal memo is enclosed with the list of documents and is marked as ANNEXURE”C”. The present petitioner also filed a stay application on 13/04/1995 for granting of stay till the final disposal of the said appeal numbered as Reg. Civil Appeal No: 163 of 1995, which was granted by appellant court by delivering a common order dated: 09/ 04/ 1997. The copy of the said stay application along with its common order is enclosed with the list of documents and is marked as ANNEXURE “D”.

13.  That the present petitioner on 04^th July, 1995 i.e. within 5 months and 22 days of decree for restitution of conjugal right passed in favor of respondent performed a second illegal marriage, with a widow named Satpalkaur Bagga of Orissa at Gurudwara Nanak Jhira Sahib at Bidar, in Karnataka. The copy of marriage certificate issued by the management of Gurudwara Shri Nanak Jhira Sahib Bidar is enclosed with the list of document and is marked as ANNEXURE “E”. And the same Satpalkaur i.e.  the second wife gave birth to a son on 04^th May, 1996 out of their illegitimate relationship. The Copy of Bonafide Certificate issued by Sihgad Spring Dale School and Age Certificate issued by Sassoon General Hospital, Pune is enclosed with the list of documents and are marked as ANNEXURE “F” and ANNEXURE “G” respectively.

14.  That the Honorable Additional District Judge dismissed petitioners Reg Civil Appeal No: 163 of 1995 and restored the decree of restitution of conjugal rights on 04^th July, 2001. The copy of the said judgment and order is enclosed with the list of documents and is marked as ANNEXURE “H”.

15.  Thereafter respondent repeated tried to get access to her matrimonial house and also to resume co-habitation but petitioner and his family members till today obstructed respondent sometimes by his family members saying petitioner does not stay here i.e. in matrimonial house or sometimes by petitioner himself, using illegal force of Deccan Police or by using their German Shepard dog and similar other tactics.

16.  That respondent never on her own accord left the house & company of petitioner, but she was constrained to do so by petitioner and his family members without any just and sufficient reason.

17.  That respondent even today is ready to resume company of petitioner and the same finding for the disputed period is on record of page: 3 of the judgment of Reg Civil Appeal No: 163/ 1995 passed by appellant court on 04/ 07/ 2001.

18.  That petitioner has again filed the present suit for grant of divorce U/s 13 (1A) (ii) of Hindu Marriage Act canvassing the adjudicated matter once again. The copy of said memo of petition is enclosed with the list of documents and is marked as ANNEXURE “I”.   

                                                                 GROUNDS OF OBJECTION.

                                                        I.            That the respondent submits that petitioner in paragraph no: 3 of the petitioner made the following allegations: -

            “Thereafter the respondent never used to fulfill her duties of wife resulting into skirmishes between the petitioner and respondent and jeopardizing the relations of husband and wife. The respondent was aggressive in her behavior and would not take proper care of petitioner and always threatened the petitioner that, she will make him dance on her tunes. The petitioner always tried to give a patient hearing and would convince the respondent as to her behavior with himself and all the other family members. The said hearing would fall on the deaf ears of the respondent and there was no sign of improvement in the behavior of the respondent. The respondent abstained the from s*xual relations from the year 1990 till today”

                                                      II.            Respondent submits that the allegations grounded on cruelty in the above paragraph no: 3 were identical in the former divorce suit numbered as H.M.P No.: 40 of 1991. Respondent further submits that once it was held by the former court by the way of conclusive finding which are binding on both the parties that present petitioner failed to prove the cruelty of present respondent and moreover also held that there was ill- treatment from the side of present petitioner to the respondent and meanwhile rejected all the allegations made of respondents behavior; it is not open for present petitioner to again canvass the same adjudicated matter. As once the conclusive finding of the competent court comes out on the issue it becomes an final evidence and binding upon both the parties, by which paragraph no: 3 of the present suit is already proved to be frivolous, scandalous & vexatious.

                                                    III.            That the respondent further submits that the present petitioner has abused the process of court by alleging the paragraph no: 3, as it is not open for petitioner to re- litigate or re- agitate the adjudicated issue twice i.e. in the former case as well as the subsequent matter hence it amount to abuse of process  of court.

                                                    IV.            That the respondent submits that the present petitioner in paragraph no: 4 of the present suit contended that:-

                       “Thereafter, the Petitioner tried to convince the Respondent

                           for co-habitation on several time by visiting her parental

                           house at Nevasa and even through the relatives. But the

                           Petitioner’s efforts were futile and did not were any fruits

                           and the Respondent even today is staying at her parental

                           house alongwith her son”.

                                                      V.            In this Paragraph following amendment was made: -

““In the year 1995, decree for Writ Petition was passed against the Petitioner by the Honorable Civil Judge, Shrirampur on 12^th January 1995”.

                                                    VI.            In paragraph 5, it is alleged by the Petitioner as under –

“The Respondent on her own accordance has deserted the love and company of the Petitioners since February 1990 (after amendment) this date is substituted to February 1997 till today, the Petitioner submits that 17^th (after amendment 12 years) have passed the youth of the Petitioner is wasted due to the subversive conduct and adamant attitude adopted by the Respondent and hence the Petitioner cannot be kept bound in the marital time. The marriage between the Petitioner and Respondent has died both the ends viz. physically and emotionally”.

                                                  VII.            That the above respondent submits that the present being aggrieved and dissatisfied from the order and judgment of restitution of conjugal right the present petitioner on 13/ 04/ 1995 preferred an Regular Civil Appeal No: 163 of 1995, challenging the decree of restitution of conjugal right contending in his appeal memo at paragraph no: 11 that “It is not possible and is not reasonably expected from the present petitioner to co- habit with present respondent”. That the present petitioner applied for grant of stay on decree of restitution of conjugal right. Therefore the Honorable IInd Additional District judge, Shrirampur granted the stay on execution of decree of restitution; and finally on 04/ 07/ 2001 dismissed that appeal filed by petitioner, restoring the decree of restitution of conjugal rights. 

                                                VIII.            Therefore the present respondent submits that it is very interesting to note that petitioner on one hand prefers a appeal challenging the decree of restitution of conjugal rights submitting that he does not wishes to resume co- habitation with respondent and on the other hand files the present suit for divorce on ground of non- compliance with the decree of restitution of conjugal rights from the period passing of decree till February 1997. The above respondent submits that it is not open to the petitioner to file two contrary suits i.e. a appeal challenging decree of restitution and petition for grant of divorce upon non compliance with decree of restitution of conjugal rights for the same common period i.e. from 13/ 04/ 1995 to 04/ 07/ 2001 as this amounted to abuse of process of court.

                                                    IX.            That respondent further submits that this conduct on the part of the petitioner shows that the petitioner in fact, himself was not interested in compliance with the decree passed on 12^th January 1995 and in fact had challenged the decree for restitution of conjugal right. If the petitioner really wanted to comply with that decree he would have complied with that decree. He cannot be permitted on one side to challenge that decree before the District Court, and concealing this fact, come to the Family Court, and alleged that there has been non-compliance of the decree, passed on 12^th January 1995. The respondent submits that therefore, from 12^th January 1995 onwards, up to 4^th July 2001 the conduct of the petitioner is already adjudicated upon and that issue has been decided by the Additional District Judge Shrirampur in his Judgment and Order in Regular Civil Appeal No.163 of 1995 dated 4^th July 2001. In other words, there is already a finding recorded about the readiness and willingness on the part of the Respondents herein in compliance of the order dated 12^th January 1995. It is that issue, which is now closed issue and the subsequent petition, which has been filed by the Respondent alleging non-compliance of the decree of 12^th January 1995 is nothing but abuse to the process of court.          

                                                      X.            Moreover respondent submits that in context of legal position that a divorce if grounded on desertion, the petitioner must establish animus deserendi on part of the respondent and petitioner must be eager to get comfort- consortium of the respondent spouse. An interesting question cropped here is the husband sued for divorce on ground of present respondents cruelty on 24^th March 1990 and alleged that “In such circumstances it was very difficult for petitioner to co- habit with the respondent” and the wife on the other-hand approached the court pleading for decree of restitution of conjugal rights showing her readiness and willingness to resume co- habitation with the present petitioner, court held present respondent to be bonafide and also held petitioner guilty for cruelty by the way of ill- treatment to respondent and desertion as petitioner without any sufficient cause withdrew the society of the present respondent; present petitioner filed an appeal submitting that “It is not possible and is not reasonably expected from the petitioner to co-habit with respondent” challenging the said judgment directing petitioner for resuming co-habitation i.e. decree of restitution of conjugal rights, the appellant court stayed the execution proceeding till the final disposal of the appeal i.e. till 04^th July 2001. Appeal was dismissed by the appellant court by delivering a conclusive finding that “present petitioner has no intention to resume co- habitation with present respondent” and the decree of restitution of conjugal right got merged in the appellant courts judgment. After which respondent started convincing petitioner for resuming the co-habitation. Respondent shifted to Pune for the sake of effectively convincing petitioner. Petitioner sued a new suit alleging the adjudicated issue of  respondents cruelty and also for the sake of courts misguidance raised an allegation that respondent did not comply with the decree of restitution of conjugal rights without disclosing the relevant issue that he had challenged the decree of restitution of conjugal rights. A common period was sought to be availed of for both the grounds. Present petitioner is approbating and reprobating in the same proceeding i.e. Petitioner alleged that from the date of passing the decree of restitution of conjugal rights i.e. on 12/ 01/ 1995, respondent did not resume the co- habitation or complied with the decree of restitution of conjugal rights till February 1997 by way the of deserting petitioner and spoiling his youth and whereas on the other- hand petitioner approached the District court by filling an appeal against the judgment & decree directing resumption of co- habitation with respondent challenging its legality specifically submitting to the appellant court that he does not wish to resume co- habitation i.e. in other words he does not want to comply with the said decree and also applied for stay on the operation/ execution of the said judgment till the final disposal of the appeal which was granted on 09^th April 1997 which was granted. It could definitely be said that the petitioner was not willing to live with respondent, this led the Additional District Judge to deliver a conclusive finding on 4^th July, 2001 that the present petitioner does not have any intention of resuming the co-habitation with respondent. Therefore it can be said that it is inconsistent to allege adjudicated and vexatious version of cruelty of respondent and by approbating the compliance of decree of restitution and reprobating the same decree by challenging the judgment and order of restitution of Conjugal Rights before different court with disclose the real fact just to obtain advantage to hide petitioner own wrong.

                                                    XI.            Therefore the above respondent submits that the present petitioner failed to disclose the cause of action in his petition. Hence the present petition is liable to be dismissed as per the provisions of Rule 11 of Order 7 of C.P. Code. As it’s not open to petitioner to file approbating & reprobating proceeding for the same issue.

                                                  XII.            That the respondent further submits that the petitioner is well aware that the burden of proving the averments made in the paragraph no: 3, 4 & 5 alleging cruelty & desertion by non compliance of decree of restitution in on petitioner, but instead petitioner has twice submitted purshis/ memorandum for closing his evidence without even conducting his examination in- chief.

                                                XIII.            Therefore the above respondent submits that in view of the above circumstances the Paragraph no: 3, 4 & 5 are abuse to the process of court as well as frivolous, vexatious and scandalous and are liable to be struck out as per the provisions of Rule 16 of Order 6 of C.P. Code.

                                                XIV.            That the conclusive finding which is binding on petitioner and respondent also of the Honorable Additional District Judge in the judgment of Reg. Civil Appeal No: 163 of 1995 itself is an evidence which is read as “Shri Autade advocate submitted that applicant herself deserted opponent and therefore, she cannot be allowed to be taken the benefit of her own wrong. I am unable to accept this submission for the reasons that the opponent has filed the petition for decree of divorce. It goes to show that the opponent has no intention to resume co- habitation with the applicant”. That the present petitioner had a reasonable opportunity to submit his contention to the appellant court specifically while submission of his application for stay of the execution of the decree that “he made several attempt to resume the co- habitation with respondent, but the respondent failed to comply”.

                                                  XV.            That the respondent most humbly submits that the decree for restitution of conjugal right which was passed on 12^th January 1995 does not remain in existence on account of merger thereof in the decree of Appellate Court, on 4^th July 2001.

                                                XVI.            That the above respondent further submits that the above petitioner is disentitle to sue the present suit against the respondent under the provisions of Sec 13 (1A) (ii) of Hindu Marriage Act, as the above respondent most respectfully submits that granting divorce under provisions Section 13 (1A) (ii) of the Act is subject to provisions of Section 23 (1) (a) of the Hindu Marriage Act.  A petition filed for divorce under Section 13(1A) (ii) has to be examined in the context of the requirements of Section 23 (1) (a) which lays down that no spouse can take advantage of his own wrong. But in the present case petitioner has performed the second marriage on 04/ July/ 1995 i.e. after 5 months 22 days of passing of decree of restitution of conjugal rights as the marriage certificate of the same marriage is present on record of the proceeding. In addition present second wife of the petitioner gave birth to an illegitimate son from their illicit relationship, which is enough to show the established relationship between both of them since July 1995.

                                              XVII.            Therefore the respondent submits that present petitioner cannot be allowed to take benefit of his own wrong, as Infact the present petition is filed by concealing the real facts and the binding/ conclusive findings of the former courts binding on the parties of the present suit as well as by concealing petitioner’s own wrong i.e. performance of bigamy.    

                                            XVIII.            Therefore the above respondent most humbly prays to this Honorable Court that: -

                                                       PRAYER.

                                                                                I.            May this Honorable Court be kind enough to frame the preliminary issue in accordance to the above circumstances.

                                                                              II.            May this Honorable Court be kind enough to strike out the paragraph no: 3, 4 & 5 of the petition, and further dismiss the present petition as it is abuse of process court, scandalous, vexatious availing provisions of Rule 16 of Order 6 of C.P. Code.

                                                                            III.            May this Honorable Court be kind enough to dismiss the present petition under provisions of Rule 11 of Order 7 of C.P. Code.

                                                                            IV.            May this Honorable Court be kind enough to disentitle the present petitioner from filing the present petition u/s 13 (1A) (ii) of Hindu Marriage Act, in view of the above mentioned circumstance availing provisions of Sec 23 (1) (a) of the same Act.

                                                                              V.            May the Honorable Court be kind enough to permit respondent to produce any other document, citations as required and may kindly allow respondent to amend the present application if necessary according to provision of law.

                                                                            VI.            May this Honorable court be kind enough to pass any just and equitable order in the interest of justice.