SHRADDHA HITESH RAIKAR v. HITESH DATTARAM RAIKAR
Maintainability of Second Divorce Petition: Impact of Restitution Decree and Section 13(1A)(ii) of the Hindu Marriage Act on Res Judicata.
Court: Bombay High Court
Citation: 2025:BHC-AS:56059
Decision Date: 18-12-2025
List of Laws
Code of Civil Procedure, 1908; Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956; Res Judicata
- Facts: The petitioner (wife) challenged the Family Court's order that rejected her objection to the maintainability of a second divorce petition filed by the respondent (husband). The parties married in 2011. In 2014, the husband filed for divorce, and the wife filed for restitution of conjugal rights. In 2017, the Family Court dismissed the husband's divorce petition and allowed the wife's petition for restitution. The husband did not challenge these orders. Subsequently, consent terms were entered in 2019 where the husband agreed to pay Rs. 20,000/- p.m. to the wife, and the wife withdrew her execution petition. Later, the husband filed a second divorce petition in 2019, which the wife challenged based on res judicata.
- Procedural Posture: The petitioner filed a writ petition in the High Court challenging the Family Court's order that rejected her application objecting to the maintainability of the respondent's second divorce petition. The Family Court had initially disposed of the application by framing a separate issue, which was challenged in a prior writ petition. The High Court remanded the matter, and the Family Court then passed the impugned order.
- Issue: Is the second divorce petition filed by the husband maintainable, considering the dismissal of his earlier divorce petition, the decree for restitution of conjugal rights in favor of the wife, and the principle of res judicata, especially when the second petition includes a new ground of failure to resume cohabitation after the decree for restitution?
- Holding: The High Court held that the second divorce petition is maintainable because it includes a new ground, namely, the failure to resume cohabitation for a period of one year or more after the decree for restitution of conjugal rights, as provided under Section 13(1A)(ii) of the Hindu Marriage Act, 1955. The Court dismissed the wife's writ petition.
- Reasoning: The Court reasoned that while the grounds of cruelty were similar in both divorce petitions, the second petition included the ground of failure to resume cohabitation after the decree for restitution, which became available to the husband by operation of law. Section 13(1A)(ii) of the Hindu Marriage Act provides a statutory remedy for dissolution of marriage if cohabitation is not resumed for one year after the decree. This new ground prevents the application of res judicata. The Court stated, "Since the Statute itself provides for a remedy due to failure of resumption of cohabitation, the second Petition cannot be dismissed on the ground of res judicata". The Court also noted that the second petition was filed after two years from the first order, satisfying the cooling period requirement.
🔒 For Members Only