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Dipak (service)     29 June 2014

Res judicata, damage and time limit

Earlier wife filed a divorce application in foreign court on ground of one year separation and she  got ex-parte divorce order by foreign court as husband was in India and he had been unable to contest the case in Canada. Then, wife has filed the other divorce petition in Indian family court through power of attorney on cruelty ground u/s. 13(1)(ia) of Hindu Marriage Act. Now, Husband does not want divorce as he wants sustain marriage life.

Que 1: RES JUDICATA:  Is this case of Res judicata? Can husband apply under section 11 of CPC to dismiss the second petition of divorce which filed in Indian family court?

Que 2: DAMAGE: Can husband file a suit for damage as he has suffered emotionally and mentally by the act of wife for foreign divorce order?


Que 3: TIME LIMIT: The order of foreign divorce was passed before two years and two months. Is this any time limit to file a damage suit in this case? Can he file a suit of damage now?


 3 Replies

Samir N (General Queries) (Business)     29 June 2014

Very interesting set of questions indeed. Let me give you my non-advocate take on the issues raised. First, the citizenship of the two of you is important here.  But assuming that that fact is not relevant, lets analyze:

if your wife has filed another divorce petition, then by filing she has acknowledged that the Canada decree is not enforceable. This supports your defense of res judicata. With respect to the Canada decree, Indian Courts would be reluctant to accept it if both parties did not have a full opportunity to litigate their positions.  That appears to be the case here. There are case laws to that effect.

Damages: Indian Courts are very strict with respect to granting damages and in most cases they are nominal. In any event, the damages supposedly sustained by the husband here appear to have flimsy grounds. Emotional Distress is a well established basis for seeking compensation in western countries. Not so in India even for a woman, let alone a man.

Statute of limitation:  Indian courts ordinarily are liberal with respect to condoning delays. In the west, even a single day delay in filing appeals or suits for compensation are subject to lack of jurisdiction defense. In India, you can try to get over any limitation period. But it will not help because in any case you are not going to prevail in any damage suits of the type you have described.



Rangee (Lawyer)     29 June 2014

Dear friend,

To add to the answer, if do not want divorce and if you prove that you have not been cruel to your wife you will get decree for restitution of conjugal rights in your favour. Damages is difficult to get and the law of Res judicata may not be applicable since the decree is in Canada.



k.chandrasekharan (advocate)     18 March 2016

I add for clarity:

Foreign court divorce, as per local laws of that country, are recognized by Indian courts only when the parties have subjected themselves to the jurisdiction of that court, the order is on merit of the case as per local laws, or if one of the parties has obtained any relief from the other party from a court in that country.

A party having chosen a judicial forum as of competent jurisdiction, can not resile and approach another court in any country for same relief. Hence aswer to query no. 1 is : Res judicata is applicable.

Damages: Forget it. Extremely difficult in India.

Limitation: You need not bother about the wife's case in India on the issue of limitation. There is limitation in your case as 'living apart' is more than one year and is a continuing matrimonial infraction.

You can file an RCR case. It will then be incumbent on you to prove that walking out of matrimonial home by the wife is not due to any act of infraction as per Sec.13 of the HM Act, on your part.

On the other hand, if you contest the case filed by her in India, on grounds of res judicata alone, you may be successful. You can also move an application under Order 7 Rukle 11 of the CPC, if so advised by your lawyer. after dismissal of the suit, if you file RCR case, you will be successful.

Even after an RCR decree there is no compulsion for the wife to rejoin you. The only remedy then will be for you to seek divorce, for which you are not interested.

Under the circumstances, you can only have the satisfaction of having defeated your wife in legal proceedings and keeping the marriage legally alive in india.

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