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2017 DIGILAW 794 (GAU)

Nabajyoti Saikia v. Anu Kumari Gogoi Saikia

2017-06-15

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : 1. This appeal under Section 28 of the Hindu Marriage Act, 1955 has been filed challenging the legality and validity of the impugned judgment and decree dated 28.5.2013 and 3.6.2013, respectively passed by the District Judge, Jorhat in Marriage Title Suit No. 43/2009, dismissing the suit of appellant holding it to be not maintainable. 2. The brief facts are these. According to the appellant he married the respondent on 3.5.2001 whereafter they lived together upto 4.3.2006. On 4.3.2006, the respondent left his house and went to her parental home. He tried to bring her back, but in vain. Therefore, he filed Title Suit (Matrimonial) No. 29/2006 for dissolution of marriage in the Court of District Judge, Jorhat. In the said suit, appellant pleaded that the respondent filed many criminal cases frivolously and maliciously against him and his old mother and as such she treated him with cruelty. But, on contest the said suit was dismissed vide judgment and decree dated 15.11.2008. 3. However, the appellant again filed another Marriage Title Suit No. 43/2009 against her on the same ground of cruelty seeking divorce. 4. The respondent contested the suit contending inter-alia that since the earlier suit on the same ground of cruelty was dismissed by the court, subsequent suit is hit by the provisions of Order II Rule 2 read with Section 12 of the Court of Civil Procedure and as such the suit is hit by the doctrine of constructive res-judicata. 5. The District Judge agreed with the objection of Respondent and dismissed the suit by the impugned judgment and decree holding it to be not maintainable. Aggrieved, the appellant has filed the present appeal. 6. After hearing the learned Counsel for the parties and perusing the records we find that both the appellant and the respondent used to stay in the same house till 4.3.2006 and thereafter, they have been living separately till date. Appellant filed his earlier suit on 5.6.2006, thereby alleging cruelty by the respondent during the period of his stay with her and naturally there cannot be any act of cruelty by her towards him or his mother during the period of their separation. Appellant filed his earlier suit on 5.6.2006, thereby alleging cruelty by the respondent during the period of his stay with her and naturally there cannot be any act of cruelty by her towards him or his mother during the period of their separation. Therefore, since the earlier suit was decided against the appellant holding that he was not treated with cruelty by the respondent and since he has also omitted to expressly reserve his rights to sue the respondent again on some grounds thereby relinquishing the same, the subsequent suit filed by him is hit by the provisions of order II Rule-2 read with Section 12 of the Code of Civil Procedure. Therefore, we are of the considered view that the District Judge has rightly dismissed the suit holding it to be not maintainable and hence, we do not find any ground to disagree with the said finding. 7. Accordingly, the appeal is dismissed.