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Whether proceeding for divorce will be barred by res judicata if there is decree or dismissal of suit for restitution of conjugal rights?


Appeal from Order No. 552 of 2015

Balveer Singh …………….Appellant

Harjeet Kaur ………. Respondent

Present: Mr. G.C. Lakhchaura, Advocate for the appellant.

Coram:- Hon’ble Rajiv Sharma, J.
Hon’ble Sharad Kumar Sharma, J.

Reserved on 16.06.2017 Decided on : 22.06.2017 Per – Hon’ble Sharad Kumar Sharma, J.

The core issue of debate in the present appeal from order, preferred by the husband is the adjudication made by the court below by the judgment dated 28.09.2015 in the Suit no. 77 of 2013, whereby while deciding issue no. 2, the Court has held that the Bar of Section 11 of the Code of Civil Procedure will not come into play, when the Bar is being sought to be attracted on the basis of the proceeding under Section 9 vis-à-vis proceeding under Section 13-A of the Hindu Marriage Act, 1955.

2. The appellant on 26.02.2013 had filed a petition under Section 13-A of Hindu Marriage Act, 1955, seeking dissolution of the marriage, which was said to have been solemnized between the plaintiff and the defendant on 15.06.1984. Although not relevant, but still it could be said that the grounds for dissolution of marriage as pleaded, was mental cruelty, misbehavior, physical assaults and the solemnization of second marriage with another female namely Paramjit Kaur. In the said suit the pleadings were exchanged. On the exchange of the pleadings, one of the issues which cropped up and was framed as to whether the suit in question would be barred by Section 11 of Code of Civil Procedure in view of the fact that the proceedings under Section 9 stood decided.

3. For the scrutiny of the aforesaid issue, reference to section 11 as contained in the Code of Civil Procedure is necessary and is quoted herein below for convenience:-

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.”
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 :

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“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 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.

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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 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.

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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.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 22.06.2017

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