RAJEEV TIVARI Vs. PUSHPA SHARMA

JUDGEMENT

(1.) This appeal has been preferred by the appellant husband against the order of the learned Family Court, No.1, Jaipur passed on 4/1/2011. By this order, the learned Family Court dismissed the matrimonial Application No.163/2005 filed under Sec. 13 of the Hindu Marriage Act, 1955 (for short "the Act").

(2.) Brief facts giving rise to this appeal are that the marriage between the parties was solemnized on 14/2/1993 at Jaipur according to the Hindu rites and customs. The marriage was not registered. There is no issue from the wedlock of their marriage. The appellant belongs middle class family and the respondent wife belongs from a high class family. Due to this, the behaviour of the respondent wife was cruel with the appellant and his family members. The respondent wife used to go to her parental house quite often and mostly she liked to remain there. Respondent wife did not like household work. Respondent remained only 21/2 months with the appellant. Thereafter, she deserted the appellant's house without any reason. The respondent wife lodged an FIR No.124/1998 at Police Station Mahila Thana, North for offence u/s 498A and 406 IPC on 2/12/1998. After report, police arrested the appellant and parents and brother and they were remained in police and judicial custody. The appellant and his family members were acquitted on 18/2/2003 from the charge of Sec. 498A IPC. The appellant filed Divorce Petition No.125/1999 which was dismissed by the learned Family Court court on 9/5/2000 on the ground of pending of criminal case. Thereafter, the appellant filed D.B. Civil Misc. Appeal No.890/2000 before the High Court which was also dismissed on 6/12/2001 on the ground of pendency of criminal proceedings. Thereafter, the appellant filed a petition u/s 13 of the Act before the Family Court which was dismissed on 4/1/2011.

(3.) Learned counsel for the appellant submitted that the impugned order dtd. 4/1/2011 is illegal, arbitrary and against the material available on record. Learned counsel submitted that the behaviour of the respondent wife is very cruel with the appellant and his family members. The respondent wife belongs to a very well reputed family whereas the appellant belongs to a middle class family, therefore, she behaved with cruel with the appellant and his family members. Learned counsel submitted that The respondent wife lodged a criminal case against the appellant and his family members which caused severe mental agony to them. He submitted that the respondent wife deserted the appellant without any reasonable cause. The learned counsel for the appellant also submitted that the appellant has been acquitted in criminal proceedings. Thereafter, the appellant again waited for two and more years for restitution of conjugal rights but the respondent did not perform her marital obligation. Learned counsel submitted that the learned Family Court wrongly dismissed the divorce petition on the ground of res judicata. Learned counsel for the appellant submitted that the question of res judicata does not arise in the instant case because the respondent acquitted in the criminal case. Learned counsel for the appellant also submitted that earlier suit on the basis of lodging FIR only and divorce petition was found to be counter blast. After acquittal, the appellant was not guilty of cruelty. It was also submitted that principle of res judicata can be made applicable in very exceptional cases. For desertion, the learned counsel for the appellant submitted that the desertion has been of in continuous nature. The respondent did not perform his marital obligation. So, the appeal be allowed and set aside the impugned order dtd. 4/1/2011.