"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."

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, the Kerala High Court has held.

The court set aside a family court order which dismissed a man's divorce petition on the ground of bar of res judicata.

His first petition seeking divorce on the grounds of cruelty, desertion and adultery was dismissed by the Family court in 2013. The High court also did not grant him divorce.

Thereafter, he filed another petition on the same grounds, before the Family Court, which dismissed it as not maintainable, applying principles of constructive res judicata.

The bench observed that, since the dissolution is an independent and complete relief in itself under the Act, 1955, the bar under Order II Rule 2 of the Code of Civil Procedure can seldom apply to an action for dissolution of marriage. The court said:

"Dissolution is not a claim or relief identical with a claim or relief relating to money and property. Bar under Order II Rule 2 of the Code is therefore incapable of any application to a proceeding instituted for dissolution of marriage. Each independent and different ground under the Act, 1955 creates different causes of action for dissolution of the marriage. When the relief for divorce is the same in the former and subsequent proceeding, despite the grounds chosen by the party being different, no question of bar under Order II Rule 2 could apply at all."

The bench then said 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.

"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."

Setting aside the family court order, the bench held that nothing precludes the man from urging the same ground of adultery in the subsequent O.P. on new set of facts constituting adultery. It said:

"Cause of action founded on acts of cruelty and desertion cannot be said to be always fixed or stable, preventing it from being a fresh ground for dissolution of the marriage. If incidents giving rise to cruelty and desertion are different, cause of action will also differ depending on facts and circumstances. Same is the principle when cause of action relates to adultery also."