Court: Rajasthan High Court
Bench: JUSTICE Sangeet Lodha
Pushpa Vs. Damodar & Anr. On 6 January 2016
Law Point:
Civil Procedure Code, 1908 — Section 11 — Hindu Marriage Act, 1955 — Sections 13(1A)(ii), 9 — Res judicata — Subsequent divorce petition — No restitution of conjugal rights — Cruelty — Mother not in issue in first petition — Earlier petition filed by respondent-husband on ground of cruelty — Present petition for dissolution of marriage filed in terms of Section 13(1A)(ii) of Act for no restitution of conjugal rights for two years since passing of decree under Section 9 of HM Act — Cause of action for seeking dissolution of marriage in terms of Section 13(1A)(ii) arisen to respondent-husband pursuant to decree passed by Court under Section 9 of Act — Matter directly in issue in fresh petition filed by respondent-husband not in issue in former petition between parties — Principal of res judicata not applicable.
JUDGEMENT
This petition is directed against order dated 1.12.2014 passed by the Family Court, Rajsamand whereby an application preferred by the petitioner under Section 11 of the Civil Procedure Code (“CPC”) for rejection of the petition preferred by the respondent No. 1 seeking dissolution of marriage, stands rejected.
2. The relevant facts are that the respondent No. 1 filed a petition seeking divorce under Section 13 of the Hindu Marriage Act, 1955 (for short “the Act”) on the ground of cruelty. The petitioner herein filed an application under Section 9 of the Act seeking decree for restitution of conjugal rights. The petition preferred by the respondent No. 1 seeking divorce on the ground of cruelty was dismissed by the Family Court, Rajsamand vide judgment and order dated 10.5.2012, however, the application preferred by the petitioner for restitution of conjugal rights was allowed.
3. Since, there has been no restitution of conjugal rights between the parties to the marriage for a period of more than one year after passing of the decree for restitution of conjugal rights as aforesaid, the respondent No. 1 filed a petition seeking dissolution of marriage in terms of the provisions of Section 13(1A)(ii) of the Act. The petitioner filed an application under Section 11 of the CPC seeking rejection of the divorce petition on the ground that the petition filed is barred by the principle of res judicata. The application stands rejected by the Family Court by the order impugned. Hence this Petition.
4. Learned Counsel for the petitioner submitted that the petition preferred by the respondent No. 1 seeking dissolution of marriage having been dismissed by the Family Court vide order dated 10.5.2012, the fresh petition filed deserves to be dismissed as barred by principle of res judicata and thus, the Family Court has erred in rejecting the application preferred by the petitioner.
5. Indisputably, the petition seeking divorce was earlier filed by the respondent No. 1 on the ground of cruelty, whereas the present petition has been filed for dissolution of marriage in terms of the provisions of Section 13(1A)(ii) of the Act, stating that there has been no restitution of conjugal rights between the parties for a period of two years since passing of the decree for restitution of conjugal rights by the Court.
6. Obviously, the cause of action for seeking dissolution of marriage in terms of Section 13(1A)(ii) has arisen to the respondent No. 1 pursuant to the decree passed by the Court for restitution of conjugal rights. It is not the case of the petitioner that the dissolution of marriage is sought by the respondent No. 1 besides the ground in terms of Section 13(1A)(ii) of the Act, on the ground of cruelty as well. Suffice it to say that the matter directly and substantially in issue, in the fresh petition by the respondent No. 1, was not in issue in the former petition between the parties and therefore, the principle of res judicata is not attracted in the matter.
7. In this view of the matter, the order impugned passed by the Family Court rejecting the application preferred by the petitioner does not suffer from any infirmity, illegality or jurisdictional error warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
8. The writ petition is, therefore, dismissed in limine.
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