SUDHIR KUMAR Vs. RIDHI

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dtd. 18/10/2019, passed by the Family Court, Pauri Garhwal. The Family Court has dismissed the divorce petition, preferred by the appellant-husband, under Sec. 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 Sec. 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 22/6/2017, by the High Court of Uttarakhand being First Appeal No.65 of 2013.

(2.) 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 25/2/2009. 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.

(3.) 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.