SUNIL KUMAR K . Vs. PRASOBHA DEVI D

JUDGEMENT

(1.) The appellant is the husband, the petitioner in O.P.No. 1921/2013 filed by him before the Family Court, Thiruvananthapuram, for dissolution of his marriage with the 1st respondent, the wife, by invoking the grounds of cruelty, desertion and adultery, under provisions of the Hindu Marriage Act, 1955 (for short 'the Act, 1955'). The 1st respondent, after entering appearance, questioned maintainability of the O.P. on the ground of bar of res judicata, because of the dismissal of the former O.P.No.687/2012 filed by him before the Family Court, Nedumangad on identical grounds. O.P.No.687/2012 was dismissed on 11.7.2013 by the Family Court on merits. Accepting the objection raised against maintainability of the original petition, I.A.No.2706/2014 filed by the 1st respondent assailing maintainability of the O.P. and seeking dismissal of the O.P. itself on a preliminary issue, was allowed. The impugned order, dated 12.1.2016 in I.A.No.2706/2014 is challenged before us in this appeal by the aggrieved husband.

(2.) The 1st respondent/wife was married to the appellant on 7.5.2006. A child was born to the spouses. When their relationship strained, the appellant filed O.P.No.640/2009 before the Family Court at Thiruvananthapuram for dissolution of marriage, invoking the grounds of cruelty and desertion under the Act, 1955. Later, O.P.No.640/2009 was transferred to the Family Court, Nedumangad, where it was re-numbered and tried as O.P.No.687/2012. The 2nd respondent in this appeal is the husband of 1st respondent's own sister, who is the so called adulterer. He had not, however, been imp-leaded in the O.P.No.687/2012.

(3.) There was an M.C.No.375/2012 filed by the 1st respondent against the appellant under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.') where the appellant denied paternity of the child and disowned the liability to maintain the mother and the child. During the course of trial of O.P.No.687/2012, the appellant made allegations against the 1st respondent that she was leading an adulterous life with the aforesaid brother-in-law. The Family Court, Nedumangad, after appreciating the evidence on record, dismissed O.P.No.687/2012 refusing to accept the contentions of the appellant based on any of the grounds including adultery. The court specifically held in paragraph 9 of the judgment, dated 11.7.2013 that, the mere act of her travelling along with the brother-in-law in a car in connection with the illness of her mother by itself will not constitute adultery.