RAJEEV SAPRA Vs. HEMA @ SONIYA

JUDGEMENT

(1.) This appeal is preferred by the appellant husband against the order of the learned Family Court No.1, Jaipur City Jaipur passed on 10.1.2019. By this order, the learned Family Court dismissed Divorce Petition No.684/2917 filed by the appellant husband u/s 13 of the Hindu Marriage, Act, 1955 (for short "the Act").

(2.) Brief facts giving rise to this appeal are that the appellant husband filed a divorce petition u/s 13 of the Act against respondent wife before the learned Family Court No.1, Jaipur City, Jaipur stating that the appellant husband and respondent wife got married on 10.12.2001 as per Hindu Rites and Rituals at Banipark, Jaipur. From the wedlock of their marriage, one daughter namely Naysha was born who is residing with her mother. Earlier also, one Divorce Petition No.203/2010, Rajeev Sapra v/s Smt. Hema @ Soniya was filed before the learned Family Court No.1, Jaipur Metropolitan which had been dismissed on 14.10.2014. Against which, the appellant did not file any appeal. After some time, appellant husband persuaded his wife to live together but she refused to do so. The appellant and respondent are living separately for last 10-11 years. Thus, the respondent wife deserted the appellant husband.

(3.) Learned counsel for the appellant submitted that the impugned order 10.1.2019 is illegal, arbitrary and against the material available on record. The learned counsel submitted that the appellant previously filed Divorce Petition No.203/2010 titled as Rajeev Sapra v/s Smt. Hema @ Soniya before the learned Family Court No.1, Jaipur Metropolitan on the ground of cruelty and the same was dismissed vide order dated 14.10.2014 and no appeal was preferred against this order. After dismissal of the earlier petition, the appellant tried to contact the respondent to reside with him but the same was denied by the respondent and thus their marriage has become rotten. It is impossible for them to reside together. Learned counsel for the appellant also submitted that the learned Family Court framed an issue on res judicata on the application of respondent u/s 11 CPC and decided preliminary against the appellant. Learned counsel for the appellant submitted that earlier petition was based on cruelty and the present petition is based on desertion. So, the question of res judicta does not arise. Learned counsel placed reliance in case Shyam Lal v/s Smt. Leelawati reported in 2007 (3) WLN 413 (Raj.) and Prakash Chand Gupta v/s Smt. Kamla Gupta reported in AIR 1979 Delhi 33.