DEEPAK JOHRI Vs. KUMKUM JOHRI

JUDGEMENT

(1.) BY way of the present appeal, the appellant seeks to challenge the judgment dated 2/12/2006 passed by Ms. Anju Bajaj Chandna, learned additional District Judge, Delhi, thereby dismissing the divorce petition filed by the appellant under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act.

(2.) THE brief facts of the case relevant for deciding the present appeal inter-alia are that the marriage between the parties was solemnized on 4/12/1980 in Delhi according to Hindu rites and ceremonies. After their marriage the party cohabited as husband and wife till 1981. As per the appellant the respondent had left the matrimonial home on 9/7/1981 without any reasonable excuse and all efforts made by the appellant to bring back the respondent went in vein. That on 2/11/1981, a male child was born out of the wedlock. The appellant had even deputed his maternal uncle and Sh. Shiv Kumar Mathur, through whom the said marriage was arranged, to bring back the respondent to the matrimonial home but they were not successful in their efforts. The respondent had served legal notice dated 21. 04. 1982 making request to the appellant to take her back. The respondent had filed a petition under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights and vide order dated 29. 12. 82, consent decree was passed by the Court of Ms. Usha Mehra, the then Additional District judge, Delhi. As per the said consent decree the appellant had agreed to go to the house of the respondent to bring her along with the child on 31. 10. 82 at 11 A. M. As per the appellant he went to the house of the respondent along with his two relatives and Advocate Mr. S. N. Mittal to bring the respondent back to her matrimonial home but the respondent refused to join the matrimonial home. On the refusal of the respondent to join the company of the appellant, the appellant was compelled to file a petition seeking dissolution of marriage by decree of divorce under Section 13 (1) (a) and (b) of the Hindu Marriage Act. The said petition filed by the appellant was dismissed by the Court of Shri R. C. Jain, the then Additional District Judge, tis Hazari, Delhi on 28. 1. 1987. Separate petition under Section 125 Cr. P. C. seeking grant of maintenance was also filed by the respondent which was heard and finally disposed of by shri S. K. Tandon, the then Metropolitan Magistrate, Delhi vide order dated 17. 3. 1987. The appellant had preferred an appeal against the said order and the said appeal was disposed of by the court of Shri Jaspal Singh, the then additional District Judge vide order dated 17. 3. 1987. After some gap the appellant had filed a second divorce petition seeking dissolution of the marriage under Section 13 1 (ia) and 1 (ib) of the Hindu Marriage Act 1955, and the said petition was dismissed by the Court of Shri S. M. Chopra, the then additional District Judge, Delhi vide order dated 14. 5. 1984. Challenging the said order dated 14. 5. 84 the appellant filed a Civil Revision before this Court and the said revision petition was dismissed vide order dated 3. 7. 1986 on the ground of non maintainability, the order being appealable under Section 28 of the Hindu Marriage Act. Without filing any appeal against the order dated 14. 9. 94 of the learned District Judge or challenging the order of dismissal passed in Civil Revision Petition No. 1040/94, the appellant had filed, yet, another divorce petition bearing HMA 79/2006 and the said petition was dismissed by the Court of Ms. Anju Bajaj Chandana vide order dated 2. 12. 2006 which order is under challenge in the present appeal.

(3.) THE chief contention raised by Shri Dinkar Singh counsel for the appellant is that the principle of res judicata cannot be made applicable to the ground of desertion, the same being a continuing offence. Elaborating his submission further counsel contended that vide earlier judgment dated 28. 1. 1987 finding by the court was given in respect of the desertion for a specific period of 9. 7. 81 till 10. 8. 83 and such a finding cannot come in the way of the appellant to seek a divorce on the same ground claiming desertion for another period of two years preceding the date of filing of the petition, the desertion being a continuous nature of matrimonial offence. Another contention raised by the counsel for the appellant is that marriage between the parties has been irretrievably broken down as there is a continuous separation between them for over a long period of 25 years. Counsel thus contended that matrimonial discord between the parties is beyond repair and practically the marital relationship between the two parties more or less has become a fiction and nothing can be achieved in continuation of such a dead marriage. Counsel thus claimed that the appellant is entitled for grant of decree of divorce, at least on the ground of desertion as envisaged under Section 13 l (i-b) of the Hindu Marriage Act. In support of his arguments counsel for the appellant has cited following judgments: