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Rajeev Sapra S/O Shri Parmanand … vs Smt. Hema @ Soniya W/O Rajeev Sapra … on 28 May, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No. 954/2019

Rajeev Sapra S/o Shri Parmanand Sapra, Aged About 46 Years,
By Caste Punjabi, R/o 4/21, Jawahar Nagar, Police Station
Jawahar Nagar, Jaipur, 2/415, Jawahar Nagar, Jaipur And
Presently Residing At 4/565, Jawahar Nagar, Jaipur.

—-Appellant-Applicant
Versus
Smt. Hema @ Soniya W/o Rajeev Sapra D/o Kishan Chand
Bhatia, Aged About 41 Years, R/o House No.3/62, Vidhyadhar
Nagar, Jaipur, At Present Residing At Shri Krishna Hardware,
Sindhi Camp, Near Luv Kush Hotel, Jaipur, Rajasthan.

—-Respondent-Non-Applicant

For Appellant(s) : Shri Prateek Sharma
For Respondent(s) : Shri S.S. Solanki

HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

28/05/2019

BY THE COURT : (PER HON’BLE DHADDHA,J.)

1. This appeal is preferred by the appellant husband

against the order of the learned Family Court No.1, Jaipur City

Jaipur passed on 10.1.2019. By this order, the learned Family

Court dismissed Divorce Petition No.684/2917 filed by the

appellant husband u/s 13 of the Hindu Marriage, Act, 1955 (for

short “the Act”).

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2. Brief facts giving rise to this appeal are that the

appellant husband filed a divorce petition u/s 13 of the Act against

respondent wife before the learned Family Court No.1, Jaipur City,

Jaipur stating that the appellant husband and respondent wife got

married on 10.12.2001 as per Hindu Rites and Rituals at Banipark,

Jaipur. From the wedlock of their marriage, one daughter namely

Naysha was born who is residing with her mother. Earlier also, one

Divorce Petition No.203/2010, Rajeev Sapra v/s Smt. Hema @

Soniya was filed before the learned Family Court No.1, Jaipur

Metropolitan which had been dismissed on 14.10.2014. Against

which, the appellant did not file any appeal. After some time,

appellant husband persuaded his wife to live together but she

refused to do so. The appellant and respondent are living

separately for last 10-11 years. Thus, the respondent wife

deserted the appellant husband.

3. Learned counsel for the appellant submitted that the

impugned order 10.1.2019 is illegal, arbitrary and against the

material available on record. The learned counsel submitted that

the appellant previously filed Divorce Petition No.203/2010 titled

as Rajeev Sapra v/s Smt. Hema @ Soniya before the learned

Family Court No.1, Jaipur Metropolitan on the ground of cruelty

and the same was dismissed vide order dated 14.10.2014 and no

appeal was preferred against this order. After dismissal of the

earlier petition, the appellant tried to contact the respondent to

reside with him but the same was denied by the respondent and

thus their marriage has become rotten. It is impossible for them

to reside together. Learned counsel for the appellant also

submitted that the learned Family Court framed an issue on res

judicata on the application of respondent u/s 11 CPC and decided

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preliminary against the appellant. Learned counsel for the

appellant submitted that earlier petition was based on cruelty and

the present petition is based on desertion. So, the question of res

judicta does not arise. Learned counsel placed reliance in case

Shyam Lal v/s Smt. Leelawati reported in 2007 (3) WLN 413

(Raj.) and Prakash Chand Gupta v/s Smt. Kamla Gupta

reported in AIR 1979 Delhi 33.

4. Learned counsel for the respondent submitted that the

order of the learned Family Court does not suffer from any

illegality or infirmity. So, the appeal is liable to be dismissed.

5. We have given our thoughtful consideration to the

arguments advanced by both the parties, perused the impugned

order and the material available on record.

6. In the present case for which the appeal was preferred

was based solely on the ground of desertion. The previous petition

filed by the appellant was based on cruelty. Grounds of both these

petitions are not same. The above cited judgments fully support

the appellant. In Shyam Lal’s case (supra), a co-ordinate Bench

of this Court placed reliance in Apex Court judgment in case

Sajjadnashin Sayed MD B.E. EDR v/s Musa Dadabhai

Ummer and Ors. reported in (2000) 3 SCC 350 in which the

Apex Court held as under :

“The words used in Section 11 CPC are
“directly and substantially in issue”. If the matter
was in issue directly and substantially in a prior
litigation and decided against a party then the
decision would be re judicata in a subsequent
proceeding. Judicial decisions have however held
that if a matter was only “collaterally or
incidentally” in issue and decided in an earlier
proceeding, the finding therein would not ordinarily
be res judicata in a latter proceeding.”

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7. In Prakash Chand Gupta’s case (supra), Delhi High

Court held as under :

“In a continuous relationship like marriage, there is
bound to be a change and alterations in the
relationship between the parties from time to time.
Thus, the principle of res judicata can only be made
applicable in very exceptional cases.”

Therefore, the learned family Court wrongly dismissed the petition

on the ground of res judicata.

8. In the result, this appeal is allowed. The impugned

order dated 10.1.2019 is set aside. The case is remanded to the

learned Family Court No.1, Jaipur Metropolitan to decide afresh.

Both the parties are directed to appear before the learned Family

Court No.1, Jaipur Metropolitan on 22.7.2019.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J

RAJ KUMAR CHAUHAN /17/M30

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