Major Jagtar Singh Dhaliwal vs Manjit Kaur

J.V. Gupta, J.—This is husband''s appeal whose petition for divorce has been dismissed by the trial Court.

Marriage between the parties was solemnised in February, 1964 A daughter was born in August, 1970 who is living with her mother. Earlier the husband filed a petition u/s 9 of the Hindu Marriage Act (for short called ''the Act'') for the restitution of conjugal rights on September 14, 1977. The said petition was compromised on May 22, 1979. Later on the husband filed a petition for divorce alleging desertion on the part of the wife. The said petition was filed in August 1979. The trial Court dismissed the said petition on May 14, 1980. The appeal was filed by the husband in the High Court which was dismissed on May 20, 1981 vide copy Exhibit P. 3. The husband filed the present petition for divorce in the year 1984 alleging cruelty on the part of his wife. He also pleaded desertion on the ground that the earlier divorce petition was dismissed on the ground that period of two years had not elapsed before filing of the petition and not on merits. The allegations made in the petition were controverted in the reply filed on behalf of the wife. On the pleadings of the parties the trial Court framed the following issues:-

Whether the Respondent has treated the Petitioner with cruelty ?

Whether the Respondent has deserted the Petitioner ?

Whether the Petitioner is entitled to the decree prayed for ?

Whether the petition is barred under Order 2 Rule 2 CPC ?

Whether the petition is barred because of principle of res judicata ?

Issues Nos. 1, 2 and 5 were discussed together. The trial Court found that: "Inevitable conclusion, therefore, is that in the instant petition it was not open to the husband-Petitioner (Jagtar Singh) to plead the ground of desertion for seeking dissolution of marriage by means of divorce u/s 13(1) (ib) of the Act and that the determination of the matter in issue in this behalf is barred by the rule of res judicata u/s 11 of the Code of Civil Procedure. It was further found that: "In this view of the matter, it must be concluded that the plea of cruelty was directly and substantially in issue in the previous divorce petition (Exhibit R. 12) between them (parties) and that it was repelled and not accepted for granting the sought for relief vide the High Court''s judgment dated May 20, 1981 (Ext P. 3). And thus, the contention advanced on behalf of the wife-Respondent, namely, that the ground of cruelty is barred, and not open to the husband-Petitioner, by the principle of res judicata or constructive res judicata deserves acceptance. After giving these findings on the legal questions, the learned trial Court discussed the evidence as regards the cruelty alleged by the husband and came to the conclusion that: "It thus must be concluded that, notwithstanding these allegations the falsity of which has not been established, the ground of cruelty on the part of the wife-Respondent towards the husband Petitioner so as to entitle the latter to the sought for relief of dissolution of marriage by means of divorce remains unsubstantiated or unproved." Under these findings the divorce petition was dismissed.

Learned Counsel for the Appellant vehemently contended that the earlier divorce petition was not dismissed on merits but it was dismissed on the technical ground that a period of two years had not elapsed before filing of the divorce petition and, therefore, it has been wrongly held by the trial Court that the ground of desertion was not available to him in this petition. Moreover, argued the learned Counsel, the allegations of cruelty were not available at the time as the same were made during the pendency of the petition and, therefore, the Appellant though could seek amendment of the petition earlier but preferred to file a separate petition on that ground. In any case argued the learned Counsel, it is a broken marriage and that being so the marriage should have been dissolved by a decree of divorce or in the alternative a decree for judicial separation should have been granted as contemplated u/s 13-A of the Act.

After hearing the learned Counsel for the parties I do not find any merit in this appeal The earlier divorce petition was dismissed on merits and not on the technical ground as contended on behalf of the Appellant. As a matter of fact from the judgment of the High Court, copy Exhibit P. 3, it is quite evident that this was an additional ground while dismissing the appeal though this was on merits. It was found that the husband had failed to prove the ground of desertion as proved. Not only that even the question of cruelty was taken up in the High Court and it was disposed of with the following observations:-

The learned Counsel for the Appellant has argued that the Respondent levelled baseless allegations against the Appellant in her written statement, which amount to cruelly towards him on her part and the Appellant is entitled to a decree of divorce on this ground I do not agree with this contention as well. The Appellant did not claim in his petition a decree of divorce on the ground of cruelty on the part of the Respondent u/s 13(l)(i-a)of the Hindu Marriage Act in spite of the fact that the Respondent had levelled, more or less, the same allegations against him in her petition (Exhibit R-8) dated 4th of July, 1975, addressed by her to the Army authorities for maintenance. The Appellant in his replication termed the allegations made by the Respondent in her written statement as false and defamatory amounting to cruelty but still did not claim divorce on this ground. The Appellant did not claim any issue regarding the cruelty on the part of the Respondent towards him. It is, therefore, clear that the parties did not join issue on this point. The case of the Appellant for divorce on the ground of cruelty on the part of the Respondent was not pressed before the trial Court. Under these circumstances the Appellant cannot justifiably claim divorce on the ground of cruelty on the part of the Respondent towards him.

In view of this categoric finding by the High Court in the earlier proceedings it could not be successfully argued that even the ground of cruelty was not available to him at that time The ground was available but the Appellant did not plead the same for the reasons best known to him. Since the matter has already been decided by this Court the same question could not be agitated again by filing a second divorce petition by the husband. The effort on the part of the learned Counsel for the Appellant to challenge the correctness of the earlier findings was futile because any findings given earlier could not be challenged by filing a divorce petition for the second time. The matter stands concluded by the earlier judgment and, therefore, the second petition has been rightly held to be barred by the principles of res judicata.

As regards the broken marriage, suffice to say that it again reopens the earlier decision which the Appellant could not be allowed under the law. Moreover, the marriage had taken place in the year 1964 i. e. 24 years back and, therefore, it was not a fit case where the same could be dissolved now by a decree of divorce. Consequently, the appeal fails and is dismissed with no order as to costs.