Honble SINGH, J.–This appeal is directed against the judgment and decree dated 27.6.2001, passed by Judge, Family Court, Ajmer, whereby an application under Section 10 read with Section 13 of the Hindu Marriage Act, 1955 (for short `the Act) filed by the appellant (hereinafter referred to as `the husband) for dissolution of marriage was rejected. (2). Brief facts for the disposal of this appeal are that on 27.11.1985, marriage between the parties was solemnized as per Hindu rites at Ajmer. No issue was begotten to them out of the said wedlock. It was alleged in the petition that after the marriage, for some time, the relations between the parties remained cordial but afterwards the conduct of respondents wife (here-in-after referred to as `the wife) became cruel. She started misbehaving with the parents of the husband and finally she left the house of the husband on 21.10.1995. The husband had to file a petition under Section 13 of the Act for dissolution of marriage, which was registered at No. 124/1997. (3). It was further averred that on 21.10.1995 in absence of the husband, the respondent-wife left the house of appellant-husband along with ornaments and other articles and went to reside with her parents as her sister and mother had come to take her from the house of the husband and thereby finally deserted the husband. It was stated that the aforesaid Petition No. 124/1997 was finally decided and the same was dismissed on 19.8.1998, and, therefore, the petitioner-husband had to file the present petitioner for dissolution of marriage on the ground of desertion as well as mental cruelty. (4). In the reply filed on behalf of the wife, it has been pleaded that no such petition as the present one could be filed as the earlier petition No. 124/1997, filed by the husband was finally decided on 19.8.1998 and the same was dismissed. (4). In the reply filed on behalf of the wife, it has been pleaded that no such petition as the present one could be filed as the earlier petition No. 124/1997, filed by the husband was finally decided on 19.8.1998 and the same was dismissed. In the said petition a decree of dissolution of marriage was sought on the ground of mental cruelty and an allegation of illicit relation of the husband with the wife of his cousin (Bhabhi) was made in the reply filed by the wife-respondent and the same was adjudicated upon and that the husband had a right to make amendment in the petition of the said previous litigation by making it a ground of cruelty which he did not avail though he had availed the opportunity of cross-examination on this point. Therefore, it was alleged that the present petition filed on the said ground is barred by principle of res-judicata contained in Section 11 of the Civil Procedure Code. (5). It was further averred that the appellant-husband had also filed a petition under Section 9 of the Hindu Marriage Act and the same was dismissed for non-prosecution on the prayer of the husband and as such it was averred that the ground of desertion taken in the present petition is also barred by principle of res- judicata. With regard to the aforesaid ground of desertion, it was further alleged by the wife that it was the husband who left her on 20.10.1995 to the house of her parents and that she had expressed her willingness to go along with the husband in the aid petition but the same was withdrawn as stated above. (6). It was further averred that in the earlier petition No. 124/1997, the husband had averred that he had pardoned the wife but it was of no consequence as he did not find any change in the life of the wife and her attitude. It was further averred that the present petition was not maintainable on the aforesaid ground of cruelty as alleged, for the reason that in the earlier petition the Court had gone into the evidence on the point and finally decided the same on merits. At the end it was averred that she is still ready and willing to reside with the husband in case he is willing to fulfil matrimonial obligations. (7). At the end it was averred that she is still ready and willing to reside with the husband in case he is willing to fulfil matrimonial obligations. (7). On the basis of the pleadings of the parties, the following issues were framed:- 1. Whether the wife-respondent had made allegation on moral character of the appellant-husband in her written statement in the earlier petition No. 124/97 filed by the husband-appellant and thereby committed mental cruelty to the husband? 2. Whether the wife had deserted the husband without any reasonable cause for a period of more than two years? 3. Whether on the basis of preliminary objections taken in the written statement, the present petition is barred by principle of res judicata? 4. Relief. (8). Both the parties led their evidence and after hearing the submissions of both the sides, the Judge, Family Court, Ajmer, decided Issue No. 1 and 2 against the husband-appellant. Under Issue No. 3, the present petition was found maintainable pertaining to the ground of desertion while the petition was found to be barred on the principle of res-judicata with regard to the ground of cruelty based on the allegation made in the written statement by the wife in the earlier petition No. 124/1997 as the same was decided on merits. (9). We have heard the submissions advanced by the counsel for the parties and gone through the material on record. From the evidence it is revealed that marriage between the parties was solemnized on 27.11.1985 and the parties remained together until the wife was alleged to have left on 21.10.1995. It is further revealed that Petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was instituted by the husband which was registered at No. 251/1996 and from the copy of the proceedings dated 2.4.1997 marked Ex. A.2, it appears that the husband had expressed that he was not interested in prosecuting the petition and therefore, the same was dismissed. Ex. A.3 is the copy of the statement of the petitioner husband in the aforesaid Petition No. 251/96, wherein he had deposed that the respondent-wife was staying away from 21.10.1995 and had left her matrimonial home along with her brother and sister without any reasonable excuse and as such he was no more interested to keep her any more as a wife in the changed circumstances and as such the petition was withdrawn. (10). From the copy of the petition filed under Section 13 of the Act in the earlier petition No. 124/1997 by the husband, it is revealed that in para 15 of the petition it was averred that he had pardoned the wife thinking that she could change her attitude towards life but it was of no consequence and she ultimately left with her bag and baggage on 21.10.1995 along with his brother and sister leaving behind a note that she was leaving so as to get out of mental tension and could return early. (11). In the aforesaid petition, an issue regarding cruelty was framed as is evident from Ex. A-6 and thereafter the judgment in the said petitioner was delivered on 19.8.1998, dismissing the petitioner of the appellant-husband and copy of the judgment is placed on record as Ex. A. 7. Ex. 1 is the reply filed by respondent wife in the aforesaid earlier petition No. 124/1997, wherein in para 12, she had averred as under:- ^^12- ;g fd izkFkZuk i= dh pj.k la[;k 12 esa fy[ks rF; fcYdqy xyr ,oa cscqfu;kn gS] izkFkhZ Lo;a bl lEcU/k esa viuk izek.k izLrqr djs bl pj.k esa vafdr rF; dsoy ek= izkfFkZ;k dks cnuke djus ,oa izkFkhZ Lo;a ds vius HkkHkh ds lkFk voS/k laca/k dks Nqikus ds fy, vizkfFkZ;k ds fo:) vafdr fd;s gSA (12). From the reply marked (Ex. 1) filed by the respondent-wife in the earlier petition No. 124/1997, it is clear that she had made the aforesaid allegation in reply to what was alleged in para 12 of the petition by the husband. On perusal of para 12 of the said petition, it is revealed that the husband had made an allegation that after he had left for office and on his father being also out of the house, many persons used to come to the wife and sit together in a separate room and used to make jokes to each other and she used to go to cinema with them. This aspect of the matter has been dealt with by the trial Court while considering the issue pertaining to cruelty. In this regard our attention has been drawn to the judgment dated 19.8.1998 (Ex. This aspect of the matter has been dealt with by the trial Court while considering the issue pertaining to cruelty. In this regard our attention has been drawn to the judgment dated 19.8.1998 (Ex. A.7) in the earlier petition No. 124/1997, wherein the matter pertaining to the allegation of illicit relation with Bhabhi (wife of cousin brother) made by the wife was dealt with and it was observed as under:- ^^foizkfFkZ;k us izkFkhZ ij mldh HkkHkh ds lkFk voS/k laca/k gksus dk vkjksi yxk;k gS] bl laca/k esa mldk lk{; esa dguk Fkk fd izkFkhZ Lusg HkVukxj ds lkFk cktkj esa ?kwerk gS] fiDpj ns[kus tkrk Fkk leÖkkus ij xkyh xykSp o ekjihV djrkA izfrijh{kk esa mlus crk;k gS fd mlus LusgizHkk dks vxLr 92 esa mlh ds ?kj esa izkFkhZ dks mlh ds ?kj ij mlus fcLrj ij lksrs gq, ns[kk FkkA izfrijh{kk esa iqu% mlus dgk gS fd mlus dejs ls fudyrs gq, ns[kk Fkk fcLrj ls fudyrs ugha ns[kk FkkA foizkfFkZ;k us vius dFku dh lEiqf"V esa viuh cgu ,u-,-MCY;q- 4 kSy dqyJs"B dks izLrqr dj ijh{k.k djok;k gS bl lk{kh dk dguk Fkk fd og tuojh 93 esa izkFkhZ ds ?kj ij laØkafr ij xbZ Fkh njoktk [kqyk Fkk og vUnj pyh x;h tgka ij mlus ns[kk fd izkFkhZ viuh HkkHkh ds lkFk ,d gh fcLrj ij vuqfpr voLFkk esa iM+k gqvk FkkA foizkfFkZ;k ml le; Ldwy xbZ gqbZ FkhA ;|fi bl lk{kh us ftjg esa ;g Lohdkj fd;k gS fd mlus ;g rF; vnkyr esa igyh ckj crk;s blls iwoZ dgha dksbZ fkdk;r ugha dhA izkFkhZ us izfrijh{kk esa ;g Lohdkj fd;k gS fd LusgizHkk mldh fjrs esa HkkHkh yxrh gS rFkk og mls chekjh ds le; LdwVj ij ys tkrk FkkA iRuh dks bl laca/k esa ,srjkt FkkA LusgizHkk ds Lo;a ds ?kj okys Hkh mls ys tk ldrs Fks rFkk izkFkhZ viuh iRuh ds ,srjkt ds dkj.k vius laca/k [kjkc u gks bl gsrq LusgizHkk dks ys tkus ls euk dj ldrk Fkk ysfdu foizkfFkZ;ka ds ,srjkt dk egRo ugha fn;k vkSj blh dkj.k foizkfFkZ;k dks kadk gksuk LokHkkfod Fkk rFkk ;|fi izkFkhZ ds mldh HkkHkh Lusg HkVukxj ls voS/k laca/k gksuk izekf.kr ugha gksrs gSa ysfdu tks ifjfLFkfr;ka gS muls izkFkhZ ds viuh HkkHkh Lusg HkVukxj ds lkFk fdlh izdkj ds voS/k lacaa/k lansg ls ijs fl) ugha gksrs gSaA (13). From the above observation in the judgment of the Family Court in earlier petition No. 124/1997 it is revealed that the respondent wife led evidence on the point that her husband had illicit relations with his cousins wife and in this regard she had examined her sister N.A.W. 4 Mst. Shall Kulshrestha, who had deposed that when she went at the house of the petitioner-husband she saw him along with his Bhabhi on one bed in objectionable position while her sister (respondent) had gone to her school. In this regard the Court has observed that the wife used to raised objection whenever her husband took his Bhabhi on scooter to the hospital when she was ill but the appellant-husband did not pay any heed. The Judge, Family Court had further observed that in view of these circumstances, it was natural for the wife to have her own suspicion on the conduct of the husband. The Court had also observed that though such illicit relations as alleged were not proved but the wife had her own suspicion. (14). After considering whole evidence on record, the Judge, Family Court in the judgment of earlier petition No. 124/1997, observed that in the facts and circumstances, it was not proved that the wife committed any cruelty to the husband. This aspect of the matter has been taken into consideration by the Judge, Family Court, Ajmer in the impugned judgment. The Judge Family Court observed that the alleged allegation of illicit relations causing mental cruelty to the husband was not taken seriously by the husband as he did not reply to these allegations by way of filing rejoinder though he had made it as an independent ground of cruelty for dissolution of marriage in the instant subsequent petition after his earlier petition No. 124/1997 was dismissed. (15). In view of the above discussion, we find that there is no infirmity or perversity in the findings arrived at by the Judge Family Court, Ajmer, in coming to the conclusion that no ground of cruelty is made out on the alleged allegation of illicit relations by the wife in the earlier petition No. 124/1997, which was finally decided against the husband appellant and no appeal was preferred against the aid judgment and the judgment attained finality. (16). (16). Counsel for the appellant-husband has argued that the subsequent petition for dissolution of marriage can be founded on the allegation of cruelty made in the earlier petition by placing reliance on Harendra Nath Burman vs. Suprova Burman and another, AIR 1989 Calcutta 120. Per contra the counsel for the respondent argued that in the facts and circumstances of the present case the allegation of illicit relation with Bhabhi by the respondent- wife in the written statement was adjudicated upon in the earlier petition and the same was dismissed by the Court and no appeal was preferred and as such the earlier judgment on the point had become final and the present petition is barred by the principal of res-judicata. (17). While addressing the aforesaid aspect, we may take note of the fact that the Judge, Family Court has taken a view while deciding issue no. 3 that the present petition is barred by principle of res-judicata as the ground of cruelty taken in the present petition is based on the written statement in the earlier petition No. 124/1997 and the said allegation was tried and the parties led their evidence and after the trial, the Court had adjudicated upon the issue. It may be further noted that the wife-respondent had made an allegation regarding illicit relations against the husband with his Bhabhi (the wife of his cousin) and she had led evidence on the point to substantiate her averment. The allegation made by the wife was by way of reply and defence to the allegation made by the husband regarding her moral conduct and thus the pleadings in the plaint and in the written statement formed the basis of adjudication on the issue of cruelty in the said petition. The husband had not taken this allegation as an independent cause of action as he neither choose to withdraw the petitioner so as to file a fresh petition nor he choose to amend his petition so as to make it an additional ground and he simply continued with the said petition and thereby participated in the adjudication in the existing fold of the pleadings. Therefore, we find that on there being final adjudication of the matter by the Judge, Family Court, Ajmer, by deciding the question of cruelty against the petitioner-husband after considering the allegation, the same is no more available to the petitioner husband for subsequent petition. Therefore, we find that on there being final adjudication of the matter by the Judge, Family Court, Ajmer, by deciding the question of cruelty against the petitioner-husband after considering the allegation, the same is no more available to the petitioner husband for subsequent petition. Therefore, we do not find any infirmity in the finding of the Judge Family Court in arriving at the conclusion that the present petition stands barred by principle of res-judicata under Section 11 of the Civil Procedure Code. (18). While adverting to the point of desertion, from the evidence on record it is revealed that the appellant-husband alleged that the respondent-wife had deserted him on 21.10.1995 when she left her matrimonial home along with her mother and sister. It is further revealed that the husband filed a petition under Section 9 of the Hindu Marriage Act which was registered as Petition No. 251/1996 wherein the statement of the appellant husband was recorded and it was deposed that when he had filed the petition he wanted to keep his wife with him but the circumstances were changed and he was no more interested to keep her with him so he withdrew the said petition for restitution of conjugal rights and filed a petition No. 124/1997 for dissolution of marriage on the ground of cruelty. It shows that it was the husband who had undergone a change of state of mind and had decided to snap the ties by withdrawing the petition for restitution of conjugal rights. It has not been shown as to what were those circumstances which were responsible to withdraw that petition as alleged by him and to file the petition for dissolution of marriage instead. The Judge, Family Court observed that the wife respondent was in service and was posted out of Ajmer. She was promoted and transferred from place to place and the husband did not go to meet her as admitted by the husband himself. In the statement of the husband in the petition No. 124/1997, it was admitted by him in his cross-examination that the respondent-wife had come from Gangapur City on 19.10.1995 and as such it could be just probable that the husband could have taken the wife to her parental house as deposed by her. In the statement of the husband in the petition No. 124/1997, it was admitted by him in his cross-examination that the respondent-wife had come from Gangapur City on 19.10.1995 and as such it could be just probable that the husband could have taken the wife to her parental house as deposed by her. In reply to the earlier petition No. 124/1997 filed by the husband for dissolution of marriage on the ground of cruelty, the wife had expressed that inspite of the misbehavior of the husband under the influence of his parents, she was ready and willing to live with him in the interest of happy family. Therefore, we do not find any infirmity in the conclusion arrived at by the Judge, Family Court that the wife respondent was no more responsible for desertion. (19). The counsel for the appellant has argued that the marriage between the two parties had been irretrievably broken down and the same is liable to be dissolved on this ground in view of the decision of Apex Court in Naveen Kohli vs. Neelu Kohli (2006) 6 Supreme Court Cases 558 = (2006(3) RLW 1892 (SC). While the counsel for the respondent has argued that there being no finding of cruelty against the wife- respondent and the petitioner-husband on being found responsible for non-resumption of matrimonial ties, he should not be given benefit of his own fault by passing a decree of dissolution merely on the pretext of marriage being irretrievably broken down. (20). We have given our thoughtful consideration to the aspect whether the marriage has been irretrievably broken down. We find that the husband and wife both are in government job and they have been living together after their marriage from 27.11.1985 to 21.10.1995 and thereafter the wife respondent being in job was posted out side. It was quite natural for her to stay at the place of posting and there were no efforts on the part of the husband to bring her back to the matrimonial home, rather he himself started litigation from the beginning. It was quite natural for her to stay at the place of posting and there were no efforts on the part of the husband to bring her back to the matrimonial home, rather he himself started litigation from the beginning. First he lodged a petition for restitution of conjugal rights as early as 1996 but then he changed his mind and decided to go for dissolution of marriage so he withdrew the said petition and filed petition No. 124/197 for dissolution of marriage on the ground of cruelty and after the same was dismissed, he did not file any appeal but preferred this subsequent petition. The sequence of events narrated above lead us to come to the conclusion that it is not a case where the marriage is broken down irretrievably between both the parties but the appellant is responsible for this prolonged litigation while the wife respondent has been found to be ready and willing to restore matrimonial ties. (21). In view of the evidence on record, we find that finding arrived at by the Judge, Family Court, is based on proper appreciation of evidence on record and do not suffer from any infirmity and, therefore, the appeal of the appellant husband is liable to be dismissed. (22). Consequently, the appeal is dismissed.