Sudhir Kumar vs Ridhi

Vipin Sanghi, CJ

The present appeal is directed against the judgment and order dated 18.10.2019, passed by the Family Court, Pauri Garhwal. The Family Court has dismissed the divorce petition, preferred by the appellant-husband, under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 i.e. on the ground of desertion, holding that the said petition was barred by res judicata in the light of the fact that the appellant-husband had earlier preferred a divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 i.e. on the ground of cruelty, being Matrimonial Case No.133 of 2009, which had been dismissed by the Family Court and the first appeal against the same had also been dismissed on 22.06.2017, by the High Court of Uttarakhand being First Appeal No.65 of 2013.

We have heard the learned counsels, and perused the impugned judgment and order as well as the record, and we find that the impugned judgment and order borders on perversity. The Family Court has failed to appreciate that the earlier petition had been preferred on the ground of cruelty in the year 2009. The appellant-husband had pleaded that the respondent-wife has deserted him on 25.02.2009. Obviously, even when the earlier petition was preferred in the year 2009- being Matrimonial Case No.133 of 2009, the ground of desertion was not available to the appellant-husband to raise, and he had not pleaded that as a ground to seek divorce.

We fail to appreciate and understand as to how the Family Court could have concluded that the present petition-on the ground of desertion, was barred by res judicata when the issue of desertion was not even the issue raised or decided in the earlier around, i.e. Matrimonial Case No.133 of 2019, wherein the issue of cruelty was raised and decided.

The learned Senior Counsel appearing for the respondent has submitted that, when the appellant-husband preferred the First Appeal before this Court, being First Appeal No.65 of 2013, he had raised the issue of desertion before this Court.

A perusal of the judgment dated 22.06.2017, passed by this Court in First Appeal No.65 of 2013, shows that even this Court had observed that the ground of desertion could not have been raised in the earlier petition, when the earlier petition was preferred, since desertion was pleaded from 25.02.2009, and the earlier petition was presented on 24.12.2009. Therefore, there is no merit in the submission of the learned Senior Counsel appearing for the respondent that the ground of desertion had been raised by the appellant in the first appeal preferred by him before this Court. The impugned judgment and order reflects poorly on the knowledge and understanding of the learned Presiding Judge, Family Court, who has passed the impugned judgment and order.

Accordingly, we set-aside the impugned judgment and order, and remand the case back to the Family Court for its decision on merits. Considering the fact that the present petition had been preferred the appellant-husband in the year 2019, and the parties have been litigating since the year 2009, we direct the Family Court to expedite the disposal of the divorce petition. The same should be disposed of within a period of one year from today. Neither of the parties shall be granted any undue adjournment.

The appeal stands disposed of in the aforesaid terms.s