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2019 DIGILAW 1903 (RAJ)

Rajeev Tiwari v. Pushpa Sharma

2019-07-05

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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ORDER : Narendra Singh Dhaddha, J. 1. This appeal has been preferred by the appellant husband against the order of the learned Family Court, No. 1, Jaipur passed on 4.1.2011. By this order, the learned Family Court dismissed the matrimonial Application No. 163/2005 filed u/s. 13 of the Hindu Marriage Act, 1955 (for short "the Act"). 2. Brief facts giving rise to this appeal are that the marriage between the parties was solemnized on 14.2.1993 at Jaipur according to the Hindu rites and customs. The marriage was not registered. There is no issue from the wedlock of their marriage. The appellant belongs middle class family and the respondent wife belongs from a high class family. Due to this, the behaviour of the respondent wife was cruel with the appellant and his family members. The respondent wife used to go to her parental house quite often and mostly she liked to remain there. Respondent wife did not like household work. Respondent remained only 2½ months with the appellant. Thereafter, she deserted the appellant's house without any reason. The respondent wife lodged an FIR No. 124/1998 at Police Station Mahila Thana, North for offence u/s. 498A and 406 IPC on 2.12.1998. After report, police arrested the appellant and parents and brother and they were remained in police and judicial custody. The appellant and his family members were acquitted on 18.2.2003 from the charge of section 498A IPC. The appellant filed Divorce Petition No. 125/1999 which was dismissed by the learned Family Court court on 9.5.2000 on the ground of pending of criminal case. Thereafter, the appellant filed D.B. Civil Misc. Appeal No. 890/2000 before the High Court which was also dismissed on 6.12.2001 on the ground of pendency of criminal proceedings. Thereafter, the appellant filed a petition u/s. 13 of the Act before the Family Court which was dismissed on 4.1.2011. 3. Learned counsel for the appellant submitted that the impugned order dated 4.1.2011 is illegal, arbitrary and against the material available on record. Learned counsel submitted that the behaviour of the respondent wife is very cruel with the appellant and his family members. The respondent wife belongs to a very well reputed family whereas the appellant belongs to a middle class family, therefore, she behaved with cruel with the appellant and his family members. Learned counsel submitted that the behaviour of the respondent wife is very cruel with the appellant and his family members. The respondent wife belongs to a very well reputed family whereas the appellant belongs to a middle class family, therefore, she behaved with cruel with the appellant and his family members. Learned counsel submitted that The respondent wife lodged a criminal case against the appellant and his family members which caused severe mental agony to them. He submitted that the respondent wife deserted the appellant without any reasonable cause. The learned counsel for the appellant also submitted that the appellant has been acquitted in criminal proceedings. Thereafter, the appellant again waited for two and more years for restitution of conjugal rights but the respondent did not perform her marital obligation. Learned counsel submitted that the learned Family Court wrongly dismissed the divorce petition on the ground of res judicata. Learned counsel for the appellant submitted that the question of res judicata does not arise in the instant case because the respondent acquitted in the criminal case. Learned counsel for the appellant also submitted that earlier suit on the basis of lodging FIR only and divorce petition was found to be counter blast. After acquittal, the appellant was not guilty of cruelty. It was also submitted that principle of res judicata can be made applicable in very exceptional cases. For desertion, the learned counsel for the appellant submitted that the desertion has been of in continuous nature. The respondent did not perform his marital obligation. So, the appeal be allowed and set aside the impugned order dated 4.1.2011. 4. Learned counsel for the appellant placed reliance in Surajmal v/s Radheshyam, AIR 1988 SC 1345 , Madhao Deshpande v/s Madhav Dharmadhikaree, AIR 1988 SC 1347 , Jai Singh Jairam Tyagi etc. v/s Maman Chand Ratilal Agarwal and Others, AIR 1980 SC 1201 , Dr. Rajendra Prakash Sharma v/s Gyan Chandra and Others, AIR 1980 SC 1206 , State of Maharashtra and Another v/s M/s. National Construction Company, Bombay and Another, AIR 1996 SC 2367 , Sri Narayan Bal and Others v/s Sridhar Sutar and Others, AIR 1996 SC 2371 and Rameshwar and Others v/s Jot Ram and Others, AIR 1976 SC 49 . 5. Learned counsel for the respondent vehemently opposed the appeal and submitted that the learned Family Court has rightly dismissed the application u/s. 13 of the Act. 5. Learned counsel for the respondent vehemently opposed the appeal and submitted that the learned Family Court has rightly dismissed the application u/s. 13 of the Act. He submitted that the learned Family Court did not commit any error. Therefore, the appeal may be rejected. 6. We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned order and the material available on record. 7. While interpreting Section 11 of the Code in the case of Sajjadanashin Sayed M.D.B.E. EDR v. Musa Dadabhai Ummer and Ors., the Hon'ble Supreme Court held as under: The words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue'; the former is an auxiliary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue. 8. In order to decide whether the issue is "directly and substantially" in issue or it is "collaterally or incidentally" in issue, "one test is to see if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. 9. The Learned Family Court in its impugned order observed that the appellant previously filed a petition u/s. 13 of the Act that was decided on 9.5.2000 and the appeal of this order was also dismissed on 6.12.2001. The appellant filed another petition on the same ground of cruelty and desertion which was previously decided. 9. The Learned Family Court in its impugned order observed that the appellant previously filed a petition u/s. 13 of the Act that was decided on 9.5.2000 and the appeal of this order was also dismissed on 6.12.2001. The appellant filed another petition on the same ground of cruelty and desertion which was previously decided. Learned Family Court in its order observed that the appellant and respondent were living separately before filing of Divorce Petition No. 125/1999 which was decided on 9.5.2000. According to the appellant, respondent deserted him since 1993. There is no evidence whatsoever that appellant and respondent lived together thereafter in these circumstances, no new cause of action for cruelty was arisen. There was no evidence that after acquittal from criminal case, the appellant had tried to bring respondent back to matrimonial home. Learned Family Court has observed that for desertion, both were equally liable. Finding recorded by the learned Family Court that fresh petition would be barred by principle of res judicata does not require any interference. The judgments cited by the learned counsel for the appellant are distinguishable on facts and did not provide any help to him. In view of above discussion learned Family Court has rightly dismissed the petition of the appellant on the ground of the res judicata. 10. Therefore, we find no illegality or infirmity in the order of the learned Family Court. The appeal being devoid of merit, is liable to be dismissed. 11. Hence, the appeal stands dismissed.