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Vijayalakshmi v/s R. Balasubramaniam

    C.R.P(NPD). No. 4171 of 2010`

    Decided On, 13 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE P.T. ASHA

    For the Petitioner: R. Sundar Rajan, Advocate. For the Respondent: A. Chidambaram, Advocate.



Judgment Text

(Prayer: Civil Revision Petition filed under Article 227 of Constitution of India to dismiss the O.P.No.2452 of 2006 pending on the file of the Second Additional Judge, Family Court, Chennai as an abuse of process of Court.)

1. The Civil Revision Petition is filed invoking the jurisdiction of this Court under Article 227 of the Constitution of India to dismiss O.P.No.2452 of 2006 pending on the file of the II Additional Judge, Family Court, Chennai on the ground of an abuse of process of Court. The wife who is the respondent in the proceedings before the Family Court is the petitioner in the above Civil Revision Petition.

2. The respondent/husband has filed O.P.No.2452 of 2006 on the file of the II Additional Judge, Family Court, Chennai seeking divorce on the ground of cruelty and desertion. The respondent in his petition has contended that the marriage between the petitioner and the respondent had taken place on 06.07.1969 as per the Hindu Rites and Customs and that they lived as husband and wife for 10 years till 09.09.1979; that his matrimonial life was miserable and the petitioner herein used to quarrel on trivial matters and would at the drop of the hat leave to her parents place. The respondent herein would further contend that he had earlier filed O.P.No.450 of 1982 before the 2nd Additional Judge, Family Court, Chennai, against the respondent for divorce on the very same ground of desertion and cruelty. After the formation of the Family Court at Chennai, the Original Petition was transferred to the Family Court and the same was renumbered as H.M.O.P.No.1 of 1998.

3. After contest the learned Judge of the Family Court by a judgment and decree dated 19.05.1992 granted judicial separation instead of divorce as sought for by the Respondent herein. This decree was taken by way of an appeal by the petitioner herein to this Court in C.M.A.No.261 of 1993 and by judgment and decree dated 19.12.1996, this Court was pleased to allow the appeal on the ground that when the relief sought for was for a divorce the alternative relief of judicial separation

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could not be granted. Challenging this judgment and decree, the respondent herein preferred an appeal to the Hon’ble Supreme Court and by an order dated 05.08.1999, the Hon’ble Supreme Court was pleased to confirm the judgment and decree of this Court. He would further aver that even after the dismissal of the appeal in C.A.No.2966 of 1997 by the Hon’ble Supreme Court, the petitioner herein did not evince any interest to rejoin the matrimonial home and therefore it should be presumed that she was no longer interested in continuing the marital relationship. The petitioner further contended that the respondent was deliberately maligning his name and reputation as a result of which he has suffered immense mental agony.

4. In paragraph 10 of the petition, the petitioner has stated that since the petitioner and the respondent are living separately from 1979 onwards and as the petitioner had not evinced any interest in returning to her matrimonial home particularly after the judgment of the Hon’ble Supreme Court it has become necessary for the respondent to 'once again' seek divorce on the ground of desertion and cruelty. The cause of action for filing the present petition has been detailed in paragraph 12 of the petition which is extracted herein below.

''The cause of action for the above O.P. had arisen with in the jurisdiction of this Hon'ble Court where the petitioner and the respondent last resided and on 05.08.1999 when the Apex Court had confirmed the dismissal of the earlier petition for divorce in H.M.O.P.No.1 of 1988 and even thereafter the respondent had deserved the petitioner for continuous period of 7 years and on various dates when the petitioner had been put to mental cruelty as stated above.''

This petition has been signed on 28th August 2006.

5. The petitioner herein had filed a counter statement in which she has raised the defence of res judicata; that apart she has also contended that prior to the filing of the present Original Petition, the respondent had filed two earlier Original Petitions both of which were not numbered and rejected at the threshold. In fact the copy of the petition which has been served on the petitioner contains the date 18th September 2003. The petitioner, before filing her counter to the main O.P., had taken out an interlocutory application in I.A.No.2433 of 2007 for rejecting the O.P. However, from the records it appears that the Family Court, even while the I.A.No.2433 of 2007 was pending, had directed the petitioner herein to file her counter which has been done on 22.09.2008.

6. The present petition has been filed to strike off O.P.No.2452 of 2006 pending on the file of the II Additional Family Court, Chennai on the ground that the filing of the present Original Petition amounts to re-litigating the very same issue which has been finally decided by the judgment of the Hon’ble Supreme Court in the earlier proceedings in C.A.No.2966 of 1997.

7. Mr. V.Sundararajan, the learned counsel appearing for the petitioner would submit that O.P.No.2452 of 2006 pending on the file of the 2nd Additional Judge, Family Court, Chennai is nothing but an abuse of process of law. He would contend that the petitioner had come to Court on an earlier occasion seeking divorce upon the very same grounds on which he has filed the present petition. He would also bring to the notice of this Court, the fact that the respondent herein after the dismissal of the petition by the Hon’ble Supreme Court had attempted to twice file petitions for divorce. In fact, he would contend that the petition copy which has been served on him in the present proceedings is dated 18.09.2003 and the contents in the petition is different from the statement in the petition which is ultimately taken on file in the present proceedings viz; O.P.No.2452 of 2006. The learned counsel in the course of his arguments had submitted a copy of this petition that was served on the petitioner alongwith the summons in O.P.No.2452 of 2006. In this petition, the cause of action for filing the Original Petition has been stated in paragraph 13 which reads as follows:

'The cause of action for the above O.P had arisen within the jurisdiction of this Hon'ble Court where the petitioner and the respondent last resided and on various dates when the respondent had deserted the petitioner and meted out cruelty to the petitioner and subsequently.'

8. This was in total contrast to the petition that was ultimately taken on file by the Family Court, Chennai as is seen from the cause of action extracted in Para 4 supra. The learned counsel appearing for the petitioner would submit that t no new grounds has been raised in the present petition and the same is based only upon the very same allegations contained in the earlier petition in H.M.O.P. No.1 of 1998 which has attained finality by the orders of the Hon'ble Supreme Court in C.A.No.2966 of 1997 and therefore O.P.No.2452 of 2006 is nothing but re-litigation. The learned counsel appearing for the petitioner would further argue that once abuse of process has been established this Court exercising its jurisdiction under Article 227 of the Constitution of India could strike off the petition.

9. In support of his argument, the learned counsel has drawn the attention of the Court to the Judgment reported in 1999 – 1- L.W 37 (P.Chenchu Ramiah Vs. A.M.Noohu Nachia and another) This Court's attention was drawn to paragraph 42 therein and another judgment reported in 1998 1 L.W. 355 (Renuka Devi Vs. D.Manohara) where attention was drawn to paragraphs 18 and 19.

10. Mr.A.Chidambaram, the learned counsel who appeared on behalf of the respondent/husband, per contra, submitted that after the dismissal of the appeal by the Hon'ble Supreme Court, the Petitioner had not taken any steps to rejoin her matrimonial home; that apart she had during the pendency of the appeal before the Hon'ble Supreme Court, filed O.P.No.360 of 1997 for restitution of conjugal rights; that this petition was dismissed for default and no steps were taken by the Petitioner to restore this petition and this would clearly demonstrate that the petitioner has no intention to resume her marital relationship with the Respondent and the desertion even after the dismissal of the petition by the Hon'ble Supreme Court would give a fresh cause of action. He also argued that desertion is a continuing cause of action and therefore it cannot be stated that the Original Petition deserves to be dismissed on the ground of re-litigation.

11. The learned counsel for the respondent relied upon the following judgments: AIR 2002 Himachal Pradesh 127 (Smt.Karuna. Appellant Vs. Jiwan Parkash. Respondent) in support of his argument that desertion would amount to cruelty as well particularly when the wife has left the matrimonial home without sufficient cause, the Judgment of the Delhi High Court reported in AIR 1979 Delhi 33 (Prakash Chand Gupta Vs. Kamala Gupta) wherein the Court has held that for desertion it would be sufficient if the petitioner proves that two years prior to the filing of the petition there has been a desertion, even if the desertion was for a longer period. He also relied on the judgment reported in AIR 2007 Rajasthan 93 (Shyam Lal Vs. Smt. Leelawati) to contend that desertion and cruelty are continuing wrongs and each day of desertion/cruelty will give a fresh cause of action. In the judgement in 2011 DMC 577 (Vimal Kanta Vs. J.M.Kohli) he drew the court's attention to para.9 of the said judgment. He also relied on the judgment of the Hon'ble Supreme Court reported in AIR 2015 Supreme Court Cases 3357 ( Vaish Aggarwal Panchayat vs Inder Kumar and others) wherein the Court has held res Judicata involves of questions of law and fact and therefore requires the evidence of the witnesses and therefore would not form a ground to reject the plaint.

12. Heard both counsels. It is rather unfortunate that parties who are before this Court ever since 1979 when they started the litigation in the prime of their youth, are still knocking the doors of the Court in the twilight of their lives. The Respondent husband who is a lawyer by profession is misusing the process of law to end his matrimonial relationship with the Petitioner, his wife. A perusal of the records clearly establishes that the respondent/husband had filed the earlier proceedings in H.M.O.P.No.1 of 1998 seeking a divorce on the ground of cruelty and desertion and it is seen that the allegations made therein are more or less the same as the allegations that have been made in the present petition, O.P.No.2452 of 2006. The husband in the earlier proceedings had gone to the extent of suspecting the fidelity of his wife and consequently denied that he was the father of the third child, a daughter, born out of the wedlock to the parties herein. In fact, the Hon'ble Supreme Court while dismissing the appeal has made the following observations in its judgment:

'Mr.A.B.Rohatgi, learned counsel appearing for the husband submitted that as far as the allegation of adultery against respondent-wife is concerned he is not going to press. That may be good of him but the fact remains that the allegation that the wife had sexual intercourse with a person other than the husband is a serious allegation against the wife and shows the cruel conduct of the husband entitling the wife to seek relief against him under the Act or otherwise.'

13. Therefore, it is clear that such a strong allegation questioning the wife's fidelity justifies the wife's separate residence from the husband. After the dismissal of the appeal, it is seen from the averments in the petition O.P.No.2452 of 2006 that the respondent/husband has not taken any steps whatsoever to bring back his wife and second daughter. On the contrary, in his petition the respondent would not even refer to his third child as his daughter which is evident from the statement made by him in para.7 of the petition which reads as follows:

'The petitioner submits that his son Rajesh is well settled in U.S.A and the petitioner only brought him up and educated him in the absence of the respondent similarly the petitioner also provided her with good education and also performed the marriage of his daughter Shanthi and she is also well settled in life in U.S.A. The petitioner submits that Kamatchi Bharathi had been living with the Respondent herein and while she was minor the respondent filed a pauper petition O.P.No.2725 of 1997 before the Hon'ble High Court, Madras, claiming a sum of Rs.1,00,00,000/- (Rupees One Crore Only) towards the alleged damages and the same is pending adjudication.'

14. This is once again an innuendo about the character of the Petitioner. Therefore the petitioner who had represented before the Hon'ble Supreme Court in the earlier proceedings that he is not pressing his allegation of adultery is continuing to inflict mental agony upon the petitioner/wife as seen from the extract supra.

15. The cause of action that has been pleaded by the respondent herein is nothing but an astute drafting wherein the respondent is trying to introduce a case of desertion from 05.08.1999 when the Hon'ble Supreme Court had dismissed an earlier petition so as to create a cause of action for the present petition. As already stated the allegations that have been made by the respondent in his petition, subject matter of this Revision, is nothing but a reiteration of the allegations made in the earlier petition which justifies the petitioner living away from the respondent. Further the respondent in the present petition has not made out any case that after the dismissal of the earlier Original Petition or that when the the earlier petition was pending steps had been taken by him to bring back the Petitioner into the matrimonial fold and she has refused, thereby giving him the right to state that the wife has deserted him by deliberately keeping away from his company. It is also seen that the petitioner after the disposal of the appeal by the Hon'ble Supreme Court and before the filing of this Original Petition in 2006 had taken out two applications for divorce, which however did not get numbered, which clearly exposes the fact that the respondent had no intention of resuming his marital life with the petitioner and therefore it does not lie in his mouth contend that the petitioner has deserted him. This factum is clear from the petition handed over across the bar by the counsel for the petitioner which is dated 18th September 2003 in which the cause of action pleaded is that the petitioner had deserted the respondent from 10.09.1979. Therefore it is very clear that the present petition is only a reiteration of the allegations made in the earlier petition for divorce. This is clearly a case of 'old wine in a new bottle'. Therefore it is clear that only intention of the petitioner is to relitigate.

16. The conduct of the respondent clearly demonstrates that he does not want to continue the matrimonial relationship. The issue of cruelty as well as desertion was dealt with in detail in the earlier proceedings, where both the High Court as well as the Hon'ble Supreme Court has clearly observed that the respondent had not proved the grounds of desertion or cruelty and the Hon'ble Supreme Court had gone on to hold that on the contrary the respondent herein is guilty of casting aspersions on the chastity of his wife, the petitioner herein. A reading of the earlier proceedings as well as the present proceedings clearly demonstrates that the respondent is only re litigating an issue already decided against the Respondent which clearly amounts to an abuse of process of the Court. The judgments relied upon on the side of the respondent would not come to his rescue in as much as the cases cited by the learned counsel with reference to the continuous cause of action is nothing but an obiter which will not bind this Court.

17. Coming to the instant case, it is clearly evident that the respondent does not have any fresh cause of action for filing the petition and therefore he is putting forward a very weak statement, in the form of a cause of action, that wife has not rejoined him after the judgment of the Hon'ble Supreme Court without giving any explanation as to what were the efforts made by him to bring back his wife. Further between the date of the order of the Hon'ble Apex Court and the date of the filing of the present petition, the respondent/husband had filed two other Original Petitions (which however were not numbered) seeking divorce on the very same grounds and therefore it will not lie in his mouth to state that the wife has not rejoined for a period of 7 years from the date of the dismissal of the appeal by the Hon'ble Supreme Court.

18. This Court exercising jurisdiction under Article 227 of the Constitution of India therefore cannot over look the abuse of process of court by the respondent and if this is over looked, it would amount to this Court abdicating its duty in ensuring that the petitioner/wife does not suffer the agony of once again going through the agony of a trial, which she had in the earlier proceedings for a period of over 20 years.

19. The Hon'ble Supreme Court in its decision reported in 1998 3 SCC 573 (K.K.Modi Vs. K.N.Modi) when dealing with a case of relitigation has observed as follows:

'One of the examples cited as an abuse of the process of the Court is relitigation. It is an abuse of the process of the Court and contrary to Justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, as a spurious claim being made in litigation may also in a given set of facts amount to an abuse of process of the Court. Frivoulous or vexations proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of public and the Court from being wasted.'

20. The Hon'ble Supreme Court had relied on the judgment reported in Mclkenny Vs. Chief Constable of West Midlands Police Force(1980) where the Court of appeal in England in one has struck out plea as a case of abuse of process of Court; that was the case were the party was re litigating an issue which already been decided against him, in an earlier proceedings as in the instant case.

21. The decision of the Hon'ble Supreme Court in K.K.Modi has been quoted with approval in many of the subsequent judgements by our Hon'ble Court. In the judgment reported in 2000 (3) CTC pg.74 ( Seeni alias Sundarammal vs Ramasamy Poosari) while striking of the plaint the Learned Judge observed as follows:

'Process of Court must be used bona fide and properly and must not be misused or abused. It is the duty of the Court to prevent improper use of the machinery. The Court has to see that it is not used as a means of oppression and the process of litigation is free from vexatiousness. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process would depend upon the relevant circumstances. But, it has to be judged from the angle of interest of justice and public policy.'

22. In another judgment reported in 2005 (4) L.W. 206 (The Member Concern Department of Post, Government of India Vs Ms.Annapoorni and others) this Court has observed

'One of the examples cited as an abuse of process of the Court is relitigation. It is an abuse of the process of the Court and contrary to Justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But, if the same issue is sought to be reagitated, it also amounts to an abuse of process of the Court.'

23. The Learned Judge has gone on to observe that

'The Court then has the power to stop such proceedings summarily and prevent the time of public and the Court from being wasted.'

This Court had proceeded to strike of the plaint.

24. Considering the fact that the respondent herein is only re litigating and relying upon the aforesaid judgments, the petition filed by the respondent is directed to be struck off from the file.

25. In the result, the Civil Revision Petition is allowed, O.P.No.2452 of 2006 is directed to be struck off from the file of the II Additional Family Judge, Chennai.
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