Res judicata in matrimonial case
anand
(Querist) 28 March 2012
This query is : Resolved
Brother's wife filed cruelty to cover up her adultery. When he decided to contest it, she filed a false 498a against entire extended family with tons of false allegations months later. Since these allegations were not there in orignal cruelty petition, she withdrew unconditionally (withdrawal of petition as not pressed; no liberty to refile) and then immediately refiled a copy of the 498a FIR as her new cruelty case.
Can we argue for a dismissal of her new cruelty case right away as there is no new cause of action made out after withdrawal? Lawyer says res judicata etc does not apply to matrimonial cases and we have to contest it as it won't be dismissed. Is this true?
Shonee Kapoor
(Expert) 28 March 2012
You can argue for dismissal. The court would decide. If there are no new facts or cruelty added, then the case can be dismissed.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Adv.R.P.Chugh
(Expert) 28 March 2012
Dear Querist,
At the very outset - I must commend you for the very intelligent query.
I'd tell you why res judicata would not apply - Res Judicata applies only when the matter is finally heard and decided, she has withdrew her petition and the same was not adjudicated by the court after hearing rival contentions. Hence Res Judicata as laid down in S.11 CPC does not apply.
However the broad spirit of Res Judicata i.e to prevent same matters from being re-agitated again and again as implicit in Ord.23 may apply. On the same Cause of Action or in other words on the same subject matter - another suit cannot be filed - if the earlier withdrawal is absolute.
Having said that - we also need to remember that cruelty is a continuing wrong that renews itself and gives a new cause of action de, die et diem (day to day).
Hence in the ultimate analysis - whether the second suit is maintainable would depend upon a comparison of both the pleadings - her earlier petition and the second one by juxtaposing them.
anand
(Querist) 28 March 2012
Thank you very much Shonee Sir as always.
Bharat Sir, thanks also for a very detailed answer. I understand why S.11 CPC does not apply. Being a layman, I don't understand the second reasoning. Please allow an example from comparison of both pleadings:
Cruelty Case 1 has, say, 10 allegations and withdrawn on date X before hearing.
Cruelty Case 2 has, say, 20 allegations (10 old + 10 additional) filed on the next day. No allegation on date X and date X+1, but 1 new allegation after filing date of Case 1.
Are you actually saying that, in this example, the second suit may be maintainable just because it has new allegations, even though there is no allegation after withdrawal date?
Since cruelty case 2 and FIR are copies (except that divorce is sought in one), this means we have to defend ourselves twice - in both civil and criminal lawsuits. Does this make sense legally?
Raj Kumar Makkad
(Expert) 29 March 2012
You have understood very well. You shall have to defend civil as well as criminal case.
Legal Fighter
(Expert) 29 March 2012
as there is no new cause of action which was not in knowledge of the wife at the time of filing earlier petition, you can definitely challenge maintainablity of the divorce petition.
V R SHROFF
(Expert) 29 March 2012
S.11 CPC does not apply. [ but 498 is Cr.PC]
It is not suit, it is Complaint.
you have to defend twice - in both civil and criminal lawsuits. it is Law, cpc & crpc are diff courts. , legally
Shonee Kapoor
(Expert) 30 March 2012
You have understood the concept well. However, if there are no allegations after the date of withdrawl, the case may be dismissed.
Also, you would need to defend both the cases, civil as well as criminal.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
anand
(Querist) 06 April 2012
Thanks for all the helpful responses.
One followup question: in addition to divorce case dismissal, is the same situation also useful for 498a quash?
The first cruelty case that was withdrawn had mental cruelty allegations but no dowry demands. In the second, there are lots of dowry-related cruelty incidents.
Shonee Kapoor
(Expert) 11 April 2012
Yes. Her previous statements are binding on her.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
