HC: The cause of action to seek divorce on account of constructive desertion is not the same as actual desertion

  

On 8th October, a bench of Delhi High Court consisting of Justices Vipin Sanghi and Jasmeet Singh held that under Sub-Rule (3) of Order II Rule 2 CPC, a person being entitled to more than one relief in respect of “the same cause of action”. Thus, if the plaintiff omits to claim all such reliefs, without the leave of the Court, he shall afterwards be barred from suing for such reliefs premised on the same cause of action.

The bench after hearing the case also held that the cause of action in favour of the respondent to seek divorce on account of constructive desertion is not the same as the cause of action premised upon his case of actual desertion. Actual desertion has been pleaded by the respondent from 14.06.2014 onwards and not before that. Constructive desertion on the other hand, was pleaded from the year 2011 till the commencement of the actual desertion, which is 14.06.2014. Both these causes of action are different and distinct and they accrued at different periods of time.

Facts of the case:

The appellant had assailed the order dated 22.03.2021 passed by the learned Judge, Family Courts, New Delhi District, Patiala House Courts, New Delhi. By the impugned order, the Family Court had dismissed the application filed by the appellant wife under Order VII Rule 11 CPC seeking rejection of the aforesaid divorce petition preferred by the respondent under Section 13(1)(ib) of the Hindu Marriage Act, 1956 to seek dissolution of marriage on the ground of desertion. The submission of the appellant – in support of the said application, was that the respondent/ husband had earlier instituted two cases, namely, HMA No.471/2014 for judicial separation under Section 10 of the Act, and HMA No.637/2014 for divorce on the ground of cruelty under Section 13(1)(ia) of the Act, but had failed to include the ground of divorce premised upon the alleged desertion, even though, the said ground was available to the respondent/ husband when the earlier petitions were preferred. The appellant/ wife contended that though the respondent was entitled to grant of both the reliefs in respect of the same cause of action, namely, to seek divorce on the ground of cruelty under Section 13(1)(ia), and on the ground of desertion under Section 13(1)(ib) of the Act, he did not seek the relief of divorce on grounds of desertion, and omitted to do so.

Contention of the Appellant:

The following submission has been made by the respondent:

1. It was submitted that a perusal of the averments made by the respondent in the said petition would show that it was open to the respondent to seek divorce on ground of desertion, since he alleged that for over four years prior to filing of the said divorce petition, the parties had not been cohabiting – though living under the same roof, and had not been on talking terms.
2. It was submitted that the respondent was bound to sue for divorce on the ground of constructive desertion, at least, when he preferred the first divorce petition under Section 13(1)(ia) of the Act.
3. It was also submitted that the respondent/ husband had pleaded that the cause of action for filing the divorce petition on the ground of desertion arose on account of constructive desertion by the appellant/ wife.

Contention of the respondent:

The following contention has been submitted by the respondent:

1. It was submitted that so far as the first petition preferred by the respondent/ husband under Section 10 of the Act – to seek judicial separation is concerned, the filing of same, in any event, cannot be relied upon by the appellant for the simple reason, that when the said petition was preferred, the respondent was not interested in seeking a decree of divorce under Section 13 of the Act.
2. It was further submitted that if the ground of constructive desertion was available to the respondent as claimed by the appellant, when he preferred his petition under Section 10 of the Act, he was not bound to claim the relief of divorce as he had the option to only claim judicial separation, and not divorce.

Observation and judgement of the court:

The hon'ble bench of the court observed the following:

1. The Act in Section 13 provides for several grounds on which one of the spouse may seek divorce from the other. The cause of action in respect of each grounds enumerated in Section 13 of the Act is different.
2. Merely because in the earlier divorce petition, being HMA No.637/2014, the respondent pleaded constructive desertion from 2011, that does not preclude the respondent/ husband from pursuing his claim for divorce on grounds of actual desertion from 14.06.2014 continuously.

The bench held that it could not accept the submission of learned counsel for the appellant that merely because the ground of constructive desertion was available to the respondent when he preferred his divorce petition being HMA No.637/2014, he was bound to plead constructive desertion and also seek the relief of divorce on the said ground under Section 13(1)(ib) of the Act.

 Thus, the bench observed that the application preferred by the appellant under Order VII Rule 11 CPC was completely frivolous, and appeared to be an attempt to delay the progress of the two divorce petitions.

Read Judgment; 

 

source ; latestlaws.com/ 

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