HIGH COURT OF MADHYA PRADESH JABALPUR
F. A. No.711/2013
Sujeet Kumar Chaturvedi
Present : Hon’ble Mr. Justice S.K. Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
Name of counsel for the parties:
Shri Pradeep Naveriya, counsel for the appellant.
Shri P.K. Saxena, counsel for the respondent.
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
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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
7. We have heard learned counsel for both the parties and perused
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
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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
10. In case of Guda Vijayalakshmi vs Guda Ramchandra
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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.
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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
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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
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
(S.K. Gangele) (Smt. Anjuli Palo)
Digitally signed by