KAILASH KHARE Vs. USHA BAI

JUDGEMENT

(1.) Appellant-petitioner had filed a petition for divorce under section 13 of the Hindu Marriage Act on the ground of desertion. It was pleaded that the respondent left the society of the appellant without reasonable excuse and therefore, the appellant was entitled to a decree of divorce under section 13(1) (ib) of the Hindu Marriage Act.

(2.) Respondent-wife Smt. Ushabai among other pleas in defence contended that the issue about desertion was barred by res judicata because the petitioner had earlier filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights and it was held in that case that the respondent was forced to leave her husband's house on account of the acts of the petitioner and had not withdrawn from the society without reasonable excuse.

(3.) It was also pleaded that subsequently petitioner had filed a petition for divorce under section 13 of the Act but the same was dismissed in default and a fresh suit was barred under Order 9, Rule 9 of the Code of Civil Procedure.