KAILASH NATH Vs. AMRAWATI DEVI

JUDGEMENT

(1.) This is appellant's appeal against the order of Additional District Judge, Kurukshetra dated 19.12.2002 dismissing his petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by way of decree of divorce.

(2.) The facts in brief, are that parties were married on 24.12.1988 according to Hindu rites and ceremonies at Raja Umri, District Sultanpur (U.P.). Thereafter, the parties resided together at Kurukshetra. However, no child was born out of the wedlock. The appellant sought dissolution of the marriage on the ground of cruelty as well as desertion. According to him, respondent-wife withdrew from the society of the appellant in the year 1992 without any reasonable excuse and refused to join the matrimonial home despite best efforts. The notice of the petition was issued to the respondent but she did not come present despite service. Therefore, she was proceeded against ex parte vide order dated 25.9.2002. In ex parte evidence, the appellant appeared himself and produced Bhagwati Deen as PW-2. The Trial Court after taking into consideration the evidence on record observed that though the ex parte evidence of the appellant was unrebutted, but the same did not inspire confidence. The Trial Court did not believe the evidence produced by the appellant basically, on the ground that the thumb-impression of the respondent on the summons and the thumb-impression on the affidavit produced by the appellant do not appear to be same on visual examination. The learned Trial Court has observed that it is quite strange that the respondent did not appear in the Court but at the same time her affidavit was produced along with an attested photograph and, therefore, the evidence produced by the appellant does not appear to be trustworthy. The Court below further made out another ground for rejecting the evidence, that from the photocopy of voter identity card, the respondent is stated to be 23 years of age as on 1.1.2002 and therefore, she must be of 12 years of age at the time of her marriage.

(3.) The findings of the Trial Court are merely based on conjectures and surmises. It is well established that the principle of res judicata also applied between the two stages in the same litigation to the extent that a Court having at an earlier stage decided a matter in one way, cannot allow to re-against the same matter again at a subsequent stage of the same proceedings. Vide order dated 25.9.2002, the Trial Court proceeded against the respondent ex parte as she was not present despite service. The order proceedings ex parte was not challenged by any of the parties and, therefore, the Trial Court could not take a different view while deciding the petition finally. In case, the Trial Court was not satisfied about the respondent having not been served properly, the order proceeding ex parte could not have been passed and the Court below should have tried to secure the presence of the respondent by other means of service. Principle of res-judicata applies also between two stages in the same litigation to the extent that a Court having at an earlier stage decided a matter in one way, will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. This view of the mine finds support from the decision of the Supreme Court in Satyadhyan Ghosal and others v. Smt. Deorjin Debt and another1. Though an interlocutory order which had not been appealed from can be challenged in an appeal from the final decree or order in the present case none of the parties has challenged the interlocutory order dated 25.9.2002 vide which the respondent was proceeded against ex parte.