KUNJABIHARI PRADHAN Vs. JAYANTI PRADHAN

JUDGEMENT

(1.) THE above noted appeal and revision having arisen between the spouses, the husband appearing as the appellant/petitioner and the wife as respondent opposite party respectively in the appeal and the revision. On their consent both the above cases were heard analogously and are disposed of by this common judgment, which shall abide the result in both the Second Appeal and the Civil Revision.

(2.) FOR the sake of convenience of reference petitioner is described as the husband and the opposite party as the wife.

(3.) ON the aforesaid respective pleadings the suit for restitution of conjugal right vide Title Suit No. 92 of 1982 was filed by the husband. The wife resisted to that claim and contested that suit Learned Subordinate Judge, Bargarh as the trial court on 24.1.1985 delivered a contested judgment dismissing the suit for restitution of conjugal right on the grounds that the husband has failed to prove wilful disassociation and voluntary desertion by the wife and the wife has come with reliable evidence relating to cruelty and desertion. As against that judgment and decree husband preferred an appeal in the court of District Judge, Sambalpur. On being transferred, the same was registered as Title Appeal No. 14/9 of 1985. Learned Addl. District Judge, Bargarh, heard and dismissed that appeal as per the impugned judgment passed on 22.9.1990. Learned Additional District Judge while accepting the factual findings recorded by the Subordinate Judge also took note of the ex parte decree and maintenance granted in favour of the wife in Title Suit No. 56 of. 1988 (the fact and circumstance relating to that suit shall be stated in the next paragraph) of the Court of Subjudge, Bargarh and held that, that decision also operates as res judicata relating to the issue of desertion and cruelty. As against that judgment and decree husband has preferred the present Second Appeal. On 22.1.1991. Second Appeal was admitted formulating the substantial question of laws as follows :