SHARMA, J. - (1.) THIS appeal has been preferred by appellant Smt. Mohini Devi against the judgment dated 15. 6. 1996, whereby, the Judge, Family Court, Ajmer refused to grant the decree of divorce to the husband-petitioner Ram Chandra Vardani.
(2.) THE facts giving rise to filing of this appeal briefly stated are that the parties were married according to the Hindu Rites on 19. 4. 1984 at Kishangarh District, Ajmer. THEy had no issue out of the wedlock. Husband Ram Chandra brought a petition against his wife under Section 13 of the Hindu Marriage Act, 1955 (hereinafter called the "act") for dissolution of marriage on the ground of cruelty. However, the husband petitioner also alleged in the petition that on 17. 7. 1991, the Panchayat and respective persons of the society granted decree of divorce on the basis of their mutual consent. Appellant-wife denied all the allegations made in the petition and stated that she never divorced her husband on 17. 7. 1991 before the Notary Public. She has also alleged that respondent husband, without her consent has married to a lady namely, Chandra resident of Kekri. On the basis of the pleadings of the parties, the following issues were framed on 25. 4. 1996. (i) Whether the divorce between the parties has been taken place on 17. 7. 1991 and the divorce deed has been written? (ii) Whether the appellant-respondent committed cruelty as stated in the application? (iii) Whether the non-appellant-applicant is entitled for divorce and if yes, than to want extent? (iv) Whether the non-appellant-applicant had got married with another woman and committed adultery? (v) Help and relief? The respondent Ram Chandra Vardani examined himself and also examined witnesses Tola Ram, Karamveer, Vasu Mal in his evidence. On the other hand, appellant wife Smt. Mohini examined herself and witnesses Bachu Mal and Dayal Das Arya in her evidence. The learned Judge, Family Court while deciding issued No. 1 in favour of the petitioner has reached to the conclusion that "panchayat" had granted decree of divorce to the parties on 17. 7. 1991 and as such no second decree of dissolution of marriage can be granted and resultantly dismissed the petitioners' petition under Section 13 of the Act.
(3.) WE have heard the rival contentions of the learned counsel for the respective parties. The learned counsel for the respondent raised a preliminary legal objections regarding maintainability of appeal. The learned counsel for the respondent has contended that ultimate result of the case goes in favour of the appellant non- petitioner and as such she cannot prefer an appeal against the judgment. He has placed reliance on the case of Tara Singh vs. Smt. Shakuntal (1), The Commissioners for the Port of Calcutta vs. Bhairadinram Durga Prasad (2) and in the case of Smt. Ganga Bai vs. Vijay Kumar and others On the other hand, the learned counsel for the appellant has argued that although the petition under Section 13 of the Act has been dismissed by the Family Court, but a reading of the judgment as a whole, would show that the petitioner had won the suit and the dismissal of the petition was not on account of any defect in the petitioners claim nor in the frame of the petition nor even on any technical reason, but solely because the "panchayat" had granted divorce to the parties on the basis of their consent. The petitioners' grievance was redressed by deciding issue No. 1 in his favour and therefore, second decree for dissolution of marriage was not granted. In view of the fact that Panchayat had also granted decree of divorce to the parties on 17. 7. 1981, therefore, aforesaid finding would operate as res-judicata in subsequent suit by appellant and the appellant cannot claim any relief under Section 9 to 13 of the Act. ;