SINGH, J. - (1.) THIS appeal is directed against the judgment and decree dated 27. 6. 2001, passed by Judge, Family Court, Ajmer, whereby an application under Section 10 read with Section 13 of the Hindu Marriage Act, 1955 (for short `the Act') filed by the appellant (hereinafter referred to as `the husband') for dissolution of marriage was rejected.
(2.) BRIEF facts for the disposal of this appeal are that on 27. 11. 1985, marriage between the parties was solemnized as per Hindu rites at Ajmer. No issue was begotten to them out of the said wedlock. It was alleged in the petition that after the marriage, for some time, the relations between the parties remained cordial but afterwards the conduct of respondents wife (here-in-after referred to as `the wife') became cruel. She started misbehaving with the parents of the husband and finally she left the house of the husband on 21. 10. 1995. The husband had to file a petition under Section 13 of the Act for dissolution of marriage, which was registered at No. 124/1997. It was further averred that on 21. 10. 1995 in absence of the husband, the respondent-wife left the house of appellant-husband along with ornaments and other articles and went to reside with her parents as her sister and mother had come to take her from the house of the husband and thereby finally deserted the husband. It was stated that the aforesaid Petition No. 124/1997 was finally decided and the same was dismissed on 19. 8. 1998, and, therefore, the petitioner-husband had to file the present petitioner for dissolution of marriage on the ground of desertion as well as mental cruelty. In the reply filed on behalf of the wife, it has been pleaded that no such petition as the present one could be filed as the earlier petition No. 124/1997, filed by the husband was finally decided on 19. 8. 1998 and the same was dismissed. In the said petition a decree of dissolution of marriage was sought on the ground of mental cruelty and an allegation of illicit relation of the husband with the wife of his cousin (Bhabhi) was made in the reply filed by the wife-respondent and the same was adjudicated upon and that the husband had a right to make amendment in the petition of the said previous litigation by making it a ground of cruelty which he did not avail though he had availed the opportunity of cross-examination on this point. Therefore, it was alleged that the present petition filed on the said ground is barred by principle of res-judicata contained in Section 11 of the Civil Procedure Code. It was further averred that the appellant-husband had also filed a petition under Section 9 of the Hindu Marriage Act and the same was dismissed for non-prosecution on the prayer of the husband and as such it was averred that the ground of desertion taken in the present petition is also barred by principle of res- judicata. With regard to the aforesaid ground of desertion, it was further alleged by the wife that it was the husband who left her on 20. 10. 1995 to the house of her parents and that she had expressed her willingness to go along with the husband in the aid petition but the same was withdrawn as stated above. It was further averred that in the earlier petition No. 124/1997, the husband had averred that he had pardoned the wife but it was of no consequence as he did not find any change in the life of the wife and her attitude. It was further averred that the present petition was not maintainable on the aforesaid ground of cruelty as alleged, for the reason that in the earlier petition the Court had gone into the evidence on the point and finally decided the same on merits. At the end it was averred that she is still ready and willing to reside with the husband in case he is willing to fulfil matrimonial obligations.
(3.) ON the basis of the pleadings of the parties, the following issues were framed:- 1. Whether the wife-respondent had made allegation on moral character of the appellant-husband in her written statement in the earlier petition No. 124/97 filed by the husband-appellant and thereby committed mental cruelty to the husband? 2. Whether the wife had deserted the husband without any reasonable cause for a period of more than two years? 3. Whether on the basis of preliminary objections taken in the written statement, the present petition is barred by principle of res judicata? 4. Relief. Both the parties led their evidence and after hearing the submissions of both the sides, the Judge, Family Court, Ajmer, decided Issue No. 1 and 2 against the husband-appellant. Under Issue No. 3, the present petition was found maintainable pertaining to the ground of desertion while the petition was found to be barred on the principle of res-judicata with regard to the ground of cruelty based on the allegation made in the written statement by the wife in the earlier petition No. 124/1997 as the same was decided on merits. We have heard the submissions advanced by the counsel for the parties and gone through the material on record. From the evidence it is revealed that marriage between the parties was solemnized on 27. 11. 1985 and the parties remained together until the wife was alleged to have left on 21. 10. 1995. It is further revealed that Petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was instituted by the husband which was registered at No. 251/1996 and from the copy of the proceedings dated 2. 4. 1997 marked Ex. A. 2, it appears that the husband had expressed that he was not interested in prosecuting the petition and therefore, the same was dismissed. Ex. A. 3 is the copy of the statement of the petitioner husband in the aforesaid Petition No. 251/96, wherein he had deposed that the respondent-wife was staying away from 21. 10. 1995 and had left her matrimonial home along with her brother and sister without any reasonable excuse and as such he was no more interested to keep her any more as a wife in the changed circumstances and as such the petition was withdrawn. ;