- 1 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 1456 OF 2025 (GM-FC) BETWEEN: UTKARSH MALIK S/O. SHRI CHANDRA PAL SINGH AGED ABOUT 38 YEARS R/AT. C-459, NRI CITY, NEAR PARI CHOWK, GREATER NOIDA, OMEGA-2 NOIDA, GAUTAM BUDDHA NAGAR, UTTAR PRADESH 201301 EMAIL UTKARSHMALIK@GMAIL.COM …PETITIONER (BY SMT.SONA VAKKUND., ADVOCATE) AND: KUSUM SINGH (ALIAS KUSUM MALIK) AGED AROUND 35 YEARS R/AT NO #111, AMRUTHA AVENUE APARTMENTS 2ND MAIN, HORAMAVU, BENGALURU 560043 EMAIL KUSUMSINGH2008@GMAIL.COM …RESPONDENT (BY SRI. JAMES P ARUN KUMAR., ADVOCATE) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA., PRAYING TO QUASH THE ORDER DATED:20.08.2025 OF LEARNED 3RD ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, NYAYDEGULA, BENGALURU IN I.A.NO.6 OR 7 IN MC NO.4514/2021 VIDE ANNEXURE-K, ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 ORAL ORDER The present writ petition is filed aggrieved by the order passed in I.A.No.6/7 dated 20.08.2022 by the III Additional Principal Judge, Family Court, Bengaluru, whereby the application filed by the petitioner/husband under Order 7 Rule 11 (d) read with Section 11 of CPC in I.A.No.6/7 dated 10.08.2022 was dismissed. 2. The petitioner/husband had filed the application under Order VII Rule XI (d) read with Section 11 of CPC seeking rejection of petition as barred by law claiming that he filed the petition under Section 9 of the Hindu Marriage Act in petition No.318/2019 before the Additional Principal Judge, Family Court, Goutam Buddha Nagar on 10.04.2019. The wife remained ex-parte and the petition was decreed on 20.01.2021. Thereafter, on 06.09.2021, the wife had filed M.C.No.4514/2021 under Section 13(1)(i-a) & (2)(ii) of the Hindu Marriage Act, 1955, seeking dissolution of marriage on the ground of cruelty. 3. The application filed by the petitioner under Order 7 Rule 11(d) read with Section 11 of CPC came to be dismissed - 3 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 by way of the order impugned. While dismissing the application, the Family Court had observed that though the husband has filed this application under Order 7 Rule 11(d) of CPC, he has not referred the specific law or provision under which the petition filed by the wife is barred under law. The Court had also observed that the judgment that is passed is an ex-parte order and the wife had not participated in the said proceedings. Merely for the reason that the wife had not failed to prefer appeal against the decree of restitution of conjugal rights or failed to file the petition for setting aside the ex-parte decree in petition No.318/2019, it cannot be concluded that the petition filed by the wife under Section 13(1)(i-a) and 2(ii) of Hindu Marriage Act is not maintainable. Further, it is the settled position of law that the decree for Restitution of Conjugal Rights cannot be enforced forcefully or under compulsion. Further, in the objections filed by the wife, it is pleaded that she is taking steps to challenge the ex-parte decree passed in petition No.318/2019. The Court had also observed that the relief that is sought in the restitution and the relief that is sought in the divorce proceedings are not one and the same. As such, the principles of res-judicata will not apply in this case as - 4 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 there are two different and distinct proceedings and the petition that is filed by the wife is not barred under any law and accordingly dismissed the petition. 4. Learned counsel for the petitioner submits that when the husband had filed the M.C. seeking restitution of conjugal rights and when a decree is passed, the cause of action arose on the said suit on the day when the marriage has taken place and the day when the wife without any reasonable cause has left the matrimonial home. Even for the decree of divorce on the ground of cruelty, the cause of action is the same i.e., the date of the marriage. It is submitted that the issues between the parties are already decided by the Court and as it is an ex-parte order, it is for the wife to take steps to question the said order which the wife has not chosen to do. The Court had decided with regard to the matrimonial life of the parties and the same issues cannot be decided by the Court and the same is barred by res-judicata. Learned counsel has relied on the judgment of the High Court of Judicature at Allahabad, Lucknow in First Appeal No.122/2023 dated 14.11.2024. She had relied on paragraph Nos.11 to 15 which reads as follows: - 5 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 "(11)The principle of re judicata has been codified under Section 11 of the Code of Civil Procedure, which reads as follows: "11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." (12) The principle enunciated in Section 11 of Code of Civil Procedure provides that no Court should try any “suit” or "issue" in which the matter directly and substantially in issue has been directly and substantially decided in a formal suit. The stress would be on the term "issue" used under Section 13 of the Hindu Marriage Act, 1955. (13) Section 13 of the Hindu Marriage Act, 1955 provides for grant of divorce in certain cases. It enacts that any marriage solemnized whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified therein. Clause (ia) of subsection (1) of Section 13 of Hindu Marriage Act, 1955 declares that a decree of divorce may be passed by a Court on the ground that after the solemnization of marriage, the opposite party has treated the petitioner with cruelty (14) From the bare reading of the above provision, it appears that the principles of re judicata under Section 11 of the Code of Civil Procedure is based on the rule of law that a ground shall not be fixed for one and the same cause. The only thing the Court has to see is that whether new suit is in fact founded upon a cause of action distinct from the foundation of the former suit. (15) Even if the second suit under consideration would have been filed on some other ground, which was not a ground in the earlier suit for dissolution of - 6 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 marriage, yet, by virtue of application of Order II Rule 2 of the Code of Civil Procedure, he could not have succeeded because the new suit is in fact founded upon the same cause of action, as has been held by the Supreme Court in the case of State of Maharastra and Anr. Vs. M/s National Construction Company, Bombay and Anr., reported in AIR 1996 SC 2367. Paragraph 9 of the judgment reads as under : "......Both the principle of res judicata and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause. In the case of Mohd. Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC at p.86, the Privy Council laid down the tests for determining whether Order 2 Rule 2 of the Code would apply in a particular situation. The first of these is, "whether the claim in the new suit is in the fact founded upon a cause of action distinct from that which was the foundation for the former suit." If the answer is in the affirmative, the rule will not apply. This decision has been subsequently affirmed by two decisions of this Court in Kewal Singh v. Lajwanti, AIR 1980 SC 161 at p.163: (1980) 1 SCC 290 and in Inacio Martins's case (1993) AIR SCW 2163) (supra)." 5. Learned counsel for the petitioner had relied on the judgement of the Hon'ble Apex Court in case of Guda Vijayalakshni Vs. Guda Ramachandra Sekhara Sastry1 and submits that the principle of res-judicata is also applicable as far as the Family Courts are concerned. She relied on the judgment of the High Court of Kerala in case of C. Sarala Vs. 1 (1981) 2 SCC 646 - 7 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 K. Nalinakshan2. She relied on paragraph Nos.8 to 13 which reads as follows: "8. No doubt in the O.P. (HMA) No. 49/1975 and O.S. 60 of 1975 the reliefs sought by the H and W were different from the relief of divorce sought in the petition giving rise to this appeal. In our opinion the difference in the reliefs in the previous and the present proceedings is immaterial. What is of the essence is that the "matter" should be "directly and substantially" in issue in both the sets of proceedings. On the same set of facts which is the "matter", different reliefs could be claimed. Therefore reliefs are not of importance. In Trilok Singh's case, Trilok Singh v. Smt. Savitri Devi, AIR 1972 All 52 where facts were identical, the Allahabad High Court held that the finding in the suit for restitution of conjugal rights that the wife was turned out of the house, barred in a subsequent petition by the H for judicial separation, trial of the issue whether the W deserted him. We concur with this view. For the reasons stated in the foregoing paragraphs we hold that the O.P. (HMA) 49 of 1981 is barred by principles of Res judicata. 9. The next question is whether the present proceedings are barred by reason of the provisions of Rule 8 of Order 9 of the Code of Civil Procedure. The H's petition O.P. (HMA) 96 of 1978 which was based, inter alia, on the allegation that the W deserted him on 29-8-1974, was dismissed for default of appearance. It is not disputed that the dismissal was under Rule 8 of Order 9 of the Code of Civil Procedure. Although in one earlier proceeding the date of desertion was stated as 28-8-1974, it is common ground that only one incident resulting in the wife's leaving the house occurred on 28/29-8- 1974. Therefore, all the three proceedings relate to the same incident. In other words the causes of action in O.P. (HMA) 49/1981 and O.P. (HMA) 96/1978 are made up of one and the same incident. 10. Where a suit is dismissed, wholly or partly, under Rule 8 of Order 9 of the Code of Civil Procedure, the 2 AIR 1991 Ker 362 - 8 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 plaintiff shall be precluded from filing a fresh suit in respect of the same cause of action. The question is whether the provisions of Rules 8 and 9 of Order 9 of the Code of Civil Procedure are applicable to petitions under the Hindu Marriage Act, subject to the other provisions of the Hindu Marriage Act and the rules made by the High Court, "all proceedings" under the Hindu Marriage Act, shall be regulated, "as far as may be", by the Code of Civil Procedure. Order 9 being a part of the Code of Civil Procedure governs the proceedings under the Hindu Marriage Act. The words "as far as may be" no doubt, qualify the application of the Code of Civil Procedure to the proceedings under the Hindu Marriage Act. These words merely mean that the provisions of the Code of Civil Procedure, which, by reason of their nature are incapable of application to the proceedings under the Hindu Marriage Act, may not be applicable. For instance the provisions as to the place of suing the institution of suits by presentation of plaints and such other provisions of the Code of Civil Procedure as are inconsistent with the provisions of the Hindu Marriage Act, may not be applicable to matters in respect of which Hindu Marriage Act has different provisions. However, in the context of this case, there is no provision of the Hindu Marriage Act or Rules made thereunder, which suggests exclusion of the application of Rules 8 and 9 of Order 9 of the Code of Civil Procedure. In Manjit Kaur's case, Smt. Manjit Kaur v. Gurdial Singh, AIR 1978 Punjab and Haryana150. in identical circumstances, Rule 9 of Order 9 of the Code of Civil Procedure was held applicable to the proceedings under the Hindu Marriage Act. We have no hesitation in agreeing with that view. For the reasons stated above, the institution of O.P. (HMA) 49/1981 is barred by virtue of Order 9 Rule 9 of the Code of Civil Procedure. 11. Is the institution of O.P. (HMA) 49 of 1981 by the H on the ground of desertion by the W, an abuse of process of the court? Every citizen has a right to litigate his cause and seek justice from a court of law. It is of the essence of this right that it is exercised bona fide. To use this right to seek remedy by misuse, wrong or bad use of the judicial process is, to abuse the process of the Court. In legal thinking abuse of process of the court is a term generally applied to a proceeding which is - 9 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 wanting in bona fides and is frivolous vexation or oppressive. Abuse of process of the court, however, takes various forms. For instance securing an injunction to protect one's possession when he is not in possession, filing successive suits in respect of the same cause, securing a relief by suppression of facts and so on. 12. In this case the H in the previous proceedings OP (HMA) No. 49 of 1975 contested the W's claim that she was compelled to leave the house because of the H's cruelty. H knew the court's verdict that his cruelty drove the W away and therefore she did not desert him. Again O.S. 60 of 1975, upon the W's defence it was held that the H treated the W with cruelty and therefore the W was compelled to leave his house. The third proceeding viz. O.P. (HMA) 49/1981 out of which this appeal arises is founded on the same cause, which was negatived twice before. The H has misused his right to seek relief from the court. He has misused the liberty to seek redress from the Court, has vexed his wife and his conduct in filing successive proceedings and agitating the point rejected earlier, is oppressive. We hold that the H has abused process of the court by filing O.P. (HMA) 49/1981 on the ground that his wife deserted him on 29-8-1974. In our opinion the very institution of OP (HMA) 49/1981 is tainted by the vice of abuse of process of the court. On this ground also OP (HMA) 49/ 1981 deserves to be dismissed. 13. Although in the view which we have taken of the matter, the merits of the case cannot be gone into, we would briefly observe that the evidence reveals that the W did not leave the H's house with a view to terminating the matrimonial relations. The evidence reveals that she was driven to leave the house as a result of the ill-treatment meted out to her. Therefore the physical act of leaving the house is devoid of the element of the animus to put an end to the matrimonial cohabitation. Therefore W did not desert the petitioner." 6. Relying on these judgments, learned counsel submits that the present suit is hit by res-judicata and the Court ought - 10 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 to have allowed the application that is filed by the husband under Order VII Rule 11 (d) of CPC. 7. Learned counsel appearing for the respondent submits that the ex-parte judgment and decree that is passed in a restitution of conjugal rights case, will not preclude the wife from filing M.C. seeking divorce on the ground of cruelty. He had drawn the attention of this Court to the judgment of High Court of Uttarakhand in case of Balveer Singh Vs. Harjeet Kaur3 at paragraph Nos.4 to 14 which reads as follows: 4. The principle enunciated in Section 11 of Code of Civil Procedure provides that no Court should try any suit or "issue" in which the matter directly and substantially in issue has been directly and substantially decided in a formal suit. The stress would be on the term "issue" used under Section 9 of Hindu Marriage Act reads as under : "9. Restitution of conjugal rights.- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements, made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly." 5. On a simplicitor reading of Section 9 of the Hindu Marriage Act, 1955, it has altogether a different purpose. The purpose of section 9 of the Hindu Marriage Act, 1955 is to meet a contingency. It deals with a situation where a married couple for no 3 AIR 2017 UTTARAKHAND 175 - 11 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 justifiable reason is withdrawing himself from discharging the obligations attached to the institution of marriage, which at the hand of one of them is attempted to be settled together. The grant of relief of the restitution is subject to the satisfaction being established of non meeting of the matrimonial obligations. 6. To elucidate it further, the conjoint consideration of Section 9 read with Section 13-A is relevant. 7. Whereas Section 13-A of Hindu Marriage Act, 1955 deals with the alternative relief in divorce proceedings where the Court in the principel proceedings under Section 13 (1) and in its sub-clauses, alternatively feels instead of dissolving the marriage, to grant a decree of 'judicial separation' and, yet again is only an enabling provision to the Court to have an alternative recourse of judicial separation instead of dissolving the marriage under Section 13 for raising institution of marriage. It would be reasonable to infer that the invocation of Section 13-A is enabling the Court to have a situation to meet and grant an alternative decree of judicial separation instead of dissolution of marriage. 8. If both the provisions if are scrutinized harmoniously, the legislature in all its wisdom had provided that the two sections i.e. section 9 and section 13-A of Hindu Marriage Act, 1955. Provided to meet a separate set of contingencies, while maintaining a matrimonial relationship and its continuance. Under no set of circumstances or reasonableness, Section 9 deals or touches the issue, which is either covered by Section 13 or by Section 13-A of the Hindu Marriage Act, 1955. Thus, both the provisions are divergent to one another one aims to bring family together and the other is a judicial process to separate the family for the grounds provided under Section 13 of Hindu Marriage Act, 1955 and to meet a different purpose. Hence adjudication made by the Court under any of the aforesaid provisions, this Court feels would not attract section 11 of the Code of Civil Procedure to create a Bar in filing of a subsequent suit under either of the provisions under Section 9 or 13-A of Hindu Marriage Act, 1955. 9. Even otherwise also, if a proceeding under Section 9 is initiated by any other party to the family disputes, it's allowing would be ending up of the controversy between the parties or will aggravate the dispute - 12 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 between them. Allowing or rejection of section 9 will not create any impediment for section 13 and Section 13-A, as they are independent to section 9. Thus Section 9 will not eclipse the statutory effect of section 13-A. Thus, the bar of section 11 of Code of Civil Procedure will not come into to play. 10. Normally, it has been witnessed that whenever there is family feud and the acrimony between the husband and wife, the foremost effort which is made by either of the parties to pave a ground for subsequent proceedings under Section 13 is to initiate Section 9 and Section 13-A, thus subsequently under Section 13 happens to be a consequence of the failure of Section 9. In that view of the matter too, an adjudication under Section 9 prior in time, would not create a Bar under Section 11 of the Code of Civil Procedure. 11. The contention of the appellant in the case at hand to the effect that Suit No. 135 of 2006 preferred under Section 9 since has been decreed, hence proceedings under Section 13-A would not be maintainable is a misconception. 12. In the present case, the appellant's stands is since Section 9 has been decreed, hence Section 13- A would be barred by Section 11 of the Code of Civil Procedure. This analogy is not accepted for the rational that in the case at hand, Section 9 was decreed prior to file Section 13-A. It will not have any effect on Section 13-A, for the simple reason because if section 9 is either decreed or dismissed, it will not take away a right of a party to file Section 13 for dissolution of marriage at any subsequent stage. Hence also, from this view point, Section 11 will not be attracted and both the proceedings either under Section 9 and Section 13-A is to be decided independently. 13. In view of the above, the appeal fails and is hereby dismissed. 14. The learned family court, District Udham Singh Nagar at Rudrapur is directed to decide the Suit No. 77 of 2013 Harjeet Kaur vs. Balveer Singh under Section 13-A of Hindu Marriage Act, 1955 as expeditiously as possible, keeping in view the provisions contained in Section 21-B of the Hindu Marriage Act, 1955." - 13 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 8. Relying on these judgments, learned counsel for the respondent submits that the Court had categorically considered all the issues that fall for consideration in this case. It is submitted that the facts and circumstances of this case and in Balveer Singh’s case referred supra are similar, the Court had considered whether any order that is passed in a case filed seeking restitution of conjugal rights, will operate as a res- judicata to initiate the proceedings seeking divorce. He submits that the Court had held that there cannot be any distinction that if a person who files a restitution case can file an M.C. and a party who is the respondent in a case filed for restitution of conjugal rights cannot file an M.C. for divorce. It is submitted that allowing or dismissing of a petition for restitution of conjugal rights makes no difference. Relying on this judgment, it is submitted that the Court has passed a reasoned order. 9. Both the counsels have argued on the G&WC case and the conduct of the parties and have advanced the arguments. This Court is not inclined either to record the submissions in that regard or to go into the said aspect because the issue that - 14 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 is before this Court is whether the order that is passed by the Court in an application filed by the husband is justified or not. 10. Having heard the learned counsels on either side, perused the entire material on record. In this case, the husband had filed a case seeking restitution of conjugal rights at Noida and an ex-parte judgment and decree was passed on 20.01.2021. Thereafter, the wife had filed the M.C. seeking divorce. The contention of the learned counsel for the petitioner is that the issue that is decided by the Court and the judgment that is passed in the restitution of conjugal rights case operates as a res-judicata for initiating the M.C. proceedings. This Court is not able to appreciate the said contention. The submission that the cause of action for both the cases would be the same, also has no legs to stand. When it comes to the restitution, the party would be mentioning about the date of marriage and the day when the wife has left. When it comes to the M.C. seeking divorce on the ground of cruelty, there are several instances of cause of action for the wife seeking such relief. At any stretch of imagination, it cannot be held that they are barred by res- judicata. In Balveer Singh’s case, the Court had dealt with the - 15 - HC-KAR NC: 2025:KHC:26167 WP No. 1456 of 2025 issue in detail, wherein it has discussed about Section 11 of the Code of Civil Procedure which provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, whereas the reliefs that are sought and framed and the issues that would be decided in a case for restitution and in a case for divorce have no nexus and the issues in both the cases are different. Hence, in the considered opinion of this Court, the Court had rightly come to the conclusion and rightly dismissed the application and this Court finds no grounds to interfere. Hence, this Court is passing the following order: ORDER i. Accordingly, this writ petition is dismissed. ii. All I.As. in this petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 25