YOGESH Vs. SUJATA

JUDGEMENT

(1.) This appeal by the husband is directed against the impugned order dtd. 1/3/2018 passed on I.A. No.III in M.C. No.363/2016, by the Family Court, Belagavi, whereby the said application filed by the respondent-wife under Sec. 11 read with Sec. 151 of the Code of Civil Procedure, 1908 seeking dismissal of the petition on the ground of res judicata, was allowed by the Family Court which, consequently, proceeded to dismiss the main petition.

(2.) The material on record discloses that the appellant-husband and the respondent-wife got married on 19/2/1991 and from out of the wedlock two daughters viz., Aishwarya and Prarthana have been born and they are in the custody of the respondent-wife. In the year 2011, the appellant-husband instituted a matrimonial proceedings in M.C. No.30/2011 seeking dissolution of his marriage with the respondent by a decree for divorce and the said petition, which was filed on the ground of cruelty and desertion, came to be dismissed by the Family Court vide judgment and decree dtd. 2/11/2015. Subsequently, the appellant husband instituted the instant proceedings in M.C. No.363/2016 once again alleging cruelty and desertion and sought for dissolution of their marriage by a decree for divorce. The said petition was contested by the respondent-wife who also filed an application - I.A. No.III invoking Sec. 11 read with Sec. 151 of Code of Civil Procedure and sought for dismissal of the instant petition in M.C.No.363/2016 on the ground that in the light of the dismissal of the earlier petition in M.C. No.30/2011, the present petition was barred by res judicata. The said application having been opposed by the appellant-husband, the Family Court proceeded to pass the impugned order allowing I.A. No.III and consequently, dismissing the main petition on the ground that the same was barred by res judicata. Aggrieved by the impugned order passed by the Family Court on I.A. No.III and consequent dismissal of M.C. No.363/2016, the appellant-husband is before this Court by way of the present appeal.

(3.) Heard the learned counsel for the appellant and the learned counsel for the respondent.