SURYA KANT,J - (1.) THIS appeal has been preferred by the husband, whose divorce petition under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 has been dismissed by the learned Additional District Judge, Amritsar vide judgment and decree dated 30.4.2003.
(2.) THE marriage between the parties was solemnized on 10.12.1993. They resided together and co-haibited as husband and wife and from the wedlock a male child was born on 5.12.1994. Alleging, however, that the respondent has been treating the appellant with cruelty and that too of such a magnitude that it has become dangerous for the appellant to live with the respondent as she is very short tempered and is also a case of mental disorder as she has been getting medical treatment from the Mental Hospital at Amritsar due to which she is neither able to look after herself nor their minor child, that the appellant filed the present divorce petition. It was also averred that the respondent is schizophrenic and cannot differentiate between wrong and right, her mental faculty is below average; she cannot look-after even herself what to talk of their minor child and is unable to cook food or to do other domestic households. The appellant further averred that the respondent has deserted him for a continuous period of not less than four and a half years since 10.8.1996, therefore, he is entitled to get divorce on the ground of desertion also. In this manner, the appellant sought a decree of divorce on the ground of cruelty, desertion and the respondent being a case of mental disorder. The above-stated petition was contested by the respondent, inter alia, with a preliminary objection that earlier also the appellant had filed a divorce petition on the ground of cruelty and that the respondent is suffering from mental disorder which was, however, dismissed in default on 17.8.2000, therefore, the second petition is barred by res judicata. She also denied the allegation regarding causing of any cruelty or of being a case of mental disorder. The respondent has made counter-allegations that the appellant has been subjecting her to cruelty for not bringing sufficient dowry.
(3.) ON the basis of the pleadings, the learned Additional District Judge framed following issues :- "(1) Whether the respondent has treated the petitioner with cruelty ? OPP (2) Whether the respondent has deserted the petitioner for a period of more than two years continuously preceding the filing of the petitioner ? OPP (3) Whether the respondent is suffering continuously from mental disorder of such a kind that the petitioner cannot reasonably be expected to live with her ? OPP (4) Relief." While deciding issue Nos. 1 and 2, the learned trial Court has categorically held that "the principle of res judicata" is also applicable to the facts of the present divorce petition as the ground of cruelty was specifically pleaded by the appellant in his previous divorce petition (Ex.R-1) which was dismissed vide order dated 17.8.2000 (Ex. R-2). The learned trial Court, however, has reconsidered the ground of cruelty on merits and on appreciation of the entire evidence, it has held that the allegations made by the appellant of treating him with cruelty are false. As regard to the allegation that the respondent deserted him, the trial Court has held that it is the appellant, who has thrown her out of the matrimonial home, therefore, the said plea too was liable to be rejected.;