HIGH COURT OF MADHYA PRADESH JABALPUR

F. A. No.711/2013

Sujeet Kumar Chaturvedi

Vs.

Smt. Sita

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Present : Hon’ble Mr. Justice S.K. Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
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Name of counsel for the parties:
Shri Pradeep Naveriya, counsel for the appellant.
Shri P.K. Saxena, counsel for the respondent.
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JUDGMENT

(03.04.2018)
Per : Smt. Anjuli Palo, J.

This appeal has been filed under Section 28 of the Hindu

Marriage Act by husband being aggrieved by the impugned judgment and

decree dated 11.09.2013 passed by the learned 2 nd Additional District

Judge, Rewa in H.M.A. Case No.20-A/2012, whereby the application under

Section 13(1)(a) and (1-b) of the Hindu Marriage Act filed by the appellant

has been dismissed.

2. It is not in dispute that the marriage between the appellant

and respondent was solemnized on 1.5.1990 as per Hindu Customs. The

appellant and respondent have child born from their wedlock.

3. Brief facts of the case are that, the appellant and respondent

are husband and wife. Sometime after the marriage, the behaviour of the

respondent/wife was cruel with the appellant and his family members. She
2 F.A. No.711/2013

has been residing separately from her husband, at her parental house for

more than ten years. Therefore, the appellant filed a case for divorce on the

ground of desertion and cruelty under Section 13(1)(a) and (1-b) of the

Hindu Marriage Act against the respondent.

4. The respondent denied all the allegations made by the appellant

in her reply.

5. Learned trial Court has held that the appellant failed to prove

that the respondent behaved with him and his family members in cruel

manner. Further, it is held by the trial Court that the appellant failed to

establish that the respondent willfully deserted him, hence the petition for

divorce has been dismissed by the impugned judgment.

6. The appellant challenged the same on the grounds that the

Court below has committed error in appreciating the evidence on record and

circumstance of the case, clearly establish that there is irretrievable

breakdown of marriage solemnized between the parties, which is not

irreparable. In these circumstances, marriage of the parties should be

dissolved. Accordingly, the appellant has prayed for divorce against the

respondent.

7. We have heard learned counsel for both the parties and perused

the record.

8. During the arguments, learned counsel for the respondent has

stated that earlier to this petition for divorce, the appellant had filed a

petition for divorce in the year 2004, which was registered as Case No.40-

A/04 and the same was dismissed by the trial Court vide judgment dated

5.11.2004. The High Court in First Appeal No.150/08 also confirmed the
3 F.A. No.711/2013

judgment of trial Court and the appeal filed by the appellant was dismissed.

Another petition filed by the appellant was dismissed by the trial Court and

the appellate Court and order has been passed in favour of the respondent.

Therefore, learned counsel for the respondent urged that on the same facts,

the present appeal for divorce is not maintainable.

9. The said judgment attained finality as the same was not

challenged by the appellant by way of filing an appeal thereto. Without there

being any change of circumstances the appellant had the audacity to file

earlier petition on the same ground of desertion and cruelty and therefore,

the contention of learned counsel for the respondent that the subsequent

petition being hit by the “principle of res-judicata”. The “principle of res-

judicata” is founded on Public Policy so as to dissuade the parties not to

litigate or raise controversy again on the issues which were directly or

substantially decided between the parties in the previous litigation by the

competent Court of jurisdiction. Section 11 contains the rule of

conclusiveness of the judgment which is based partly on the maxim “Interest

reipublicae ut sit finis litium” (it concerns the state that there be an end to

law suits)” and partly on maxim “Nemo debet bis vexari pro una et eadem

causa” (no man should be vexed twice over for the same cause). The

doctrine of res-judicata or constructive res-judicata predominating is a

principle of equity, good conscience and justice. It would neither be

equitable nor fair or in accordance with the principles of natural justice that

the issue concluded earlier ought to be permitted to be raised later in a

different proceeding.

10. In case of Guda Vijayalakshmi vs Guda Ramchandra
4 F.A. No.711/2013

Sekhara Sastry, AIR 1981 SC 1143, the Apex Court has held that “the

doctrine of res-judicata contained in Section 11 of the Code of Civil

Procedure which partakes the character of substantive law is fully applicable

to proceedings under the Hindu Marriage Act.”

11. It is settled legal position that there can be no bar on the filing

of the subsequent petition. Fresh cause of action is thus determinative factor

to test the maintainability of a petition as to whether the same is hit by the

principle of res-judicata or not. In the present case, previous petition filed by

the appellant, based on the same ground as has been set up by him in the

subsequent petition, which is under question. The previous petition filed by

the appellant has already attained finality and therefore, the learned trial

Court rightly held that the present (subsequent) petition was hit by the

principles of res-judicata and was not maintainable in the eyes of law.

12. The present appeal has been filed by the appellant under

Section 13(1)(a) and (1-b) of the Hindu Marriage Act on the grounds of

desertion and cruelty.

13. In the present case, the appellant himself stated that they

(respondent) did not stay together since long. Therefore, the grounds and

reasons, which were existence at the time of presentation of earlier divorce

petition are not changed and they are still in existence. The earlier petition

i.e. C.S. No.40-A/05 of the appellant for divorce has been dismissed on the

grounds that he has failed to prove that he has been mentally suffered from

cruel behaviour of the respondent. In earlier judgment (Ex.P/2), learned trial

Court clearly held that there is no proof against the respondent for her

cruelty towards the appellant.

5 F.A. No.711/2013

14. The appellant himself admitted in his cross-examination at para-

12 that all the facts narrated by him against the respondent about cruelty,

which are similar to earlier divorce petition Ex.D/2. In such circumstances, in

the light of principle of res-judicata, this appeal is not maintainable.

15. In earlier order (Ex.P/2), the learned trial Court clearly held that

the appellant has failed to prove that he was deserted by his wife. He was

not interested to live with his wife. Appeal filed by the appellant has been

dismissed by the High Court. This fact has also been admitted by the

appellant in his chief-examination at para 7. The appellant himself in

paragraph 13 of his cross-examination admitted that he never went to the

parental house of respondent to bring her back. He has further failed to

adduce other evidence in this regard.

16. On the other hand, the respondent filed a police complaint

against the appellant, (Ex.D/1) support the testimony of respondent that on

8.5.2004, the respondent went to village Silchar at the appellant’s house but

the appellant and his family members did not allow her to enter in the house.

We do not find any reason to disbelieve the testimony of respondent, which

establishes the fact that the appellant himself does not want to reside with

the respondent. Therefore, in the light of principles laid down in the case of

Subodh Gupta Vs. Neetu Gupta reported in AIR 2017 Chh. 196 and

Bipinchandra Jaisinghbhai Shah Vs. Prabhavati, AIR 1957 SC 176.

The appellant is not liable to get a decree for divorce in his favour because

by his own conduct, the relationship of the appellant and respondent came

to the point of irretrievable breakdown.

17. Learned counsel for the appellant has placed reliance the
6 F.A. No.711/2013

judgments passed in cases of Gajendra Vs. Smt. Madhu Mati reported

in 2001(3) M.P.H.T, 335, Mahila Ramjanki Vs. Pavan Sharma

reported in 2003(2) M.P.H.T 267, K. Srinivas Rao Vs. D.A. Deepa

reported in 2013(4) M.P.H.T 1 (SC) and Naveen Kohli Vs. Neelu

Kohli reported in 2006(4) SCC 558 and contended that they were living

separately for more than ten years. Their separation comes under

irretrievable.

18. In our considered opinion, the respondent agreed to reside with

the appellant as shown in her written statement. It cannot be said that

marriage of the appellant and the respondent is beyond repaire on account

of bitterness in relationship between them. Irretrievable breakdown marriage

is not a ground by itself for divorce because dissolve of marriage will provide

relieve to both sides to combine pain and anguish. There is a chance

between the parties to go ahead with happy life.

19. In view of the aforesaid discussion, we do not find any

perversity or illegality in the impugned judgment. There is no merit in the

present appeal. Accordingly, the appeal is hereby dismissed. No order as to

costs.

(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge
pn

Digitally signed by
PANKAJ NAGLE
Date: 2018.04.09
13:10:28 +05’30’