Rajeev Tiwari vs Smt Pushpa

Rajeev Tiwari son of Shri Shyam Swaroop Tiwari, by caste Brahman, resident of House No.2427, Bhindonka Rasta, Second Crossing, Jaipur. ----Appellant Versus Smt Pushpa Sharma wife of Shri Rajeev Tiwari daughter of late Shri Madan Lal Sharma, by caste Brahman, resident of 3272, Kalyanji Ka Rasta, Second Crossing, Chand Pole Bazar, Jaipur.

----Respondent

For Appellant(s) : Shri Rajat Ranjan Shri Daulat Sharma For Respondent(s) : Shri Deepak Sharma on behalf of Shri Rajendra Prasad, Sr. Adv.

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

05/07/2019 BY THE COURT : (PER HON'BLE DHADDHA, J.)

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 u/s

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

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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 2½ 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 section 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 dated 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

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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 dated

4.1.2011.

4. Learned counsel for the appellant placed reliance in

Surajmal v/s Radheshyam, AIR 1988 SC 1345, Madhao

Deshpande v/s Madhav Dharmadhikaree, AIR 1988 SC

1347, Jai Singh Jairam Tyagi etc. v/s Maman Chand Ratilal

Agarwal and Others, AIR 1980 SC 1201, Dr. Rajendra

Prakash Sharma v/s Gyan Chandra and Others, AIR 1980

SC 1206, State of Maharashtra and Another v/s M/s.

National Construction Company, Bombay and Another, AIR

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1996 SC 2367, Sri Narayan Bal and Others v/s Sridhar

Sutar and Others, AIR 1996 SC 2371 and Rameshwar and

Others v/s Jot Ram and Others, AIR 1976 SC 49.

5. Learned counsel for the respondent vehemently

opposed the appeal and submitted that the learned Family Court

has rightly dismissed the application u/s 13 of the Act. He

submitted that the learned Family Court did not commit any error.

Therefore, the appeal may be rejected.

6. We have given our thoughtful consideration to the

arguments advanced by both the parties, perused the impugned

order and the material available on record.

7. While interpreting Section 11 of the Code in the case of

Sajjadanashin Sayed M.D.B.E. EDR v. Musa Dadabhai

Ummer and Ors., the Hon'ble Supreme Court held as under:

The words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue'; the former is an auxiliary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially"

in issue.

8. In order to decide whether the issue is "directly and

substantially" in issue or it is "collaterally or incidentally" in issue,

"one test is to see if the issue was "necessary" to be decided for

adjudicating on the principal issue and was decided, it would have

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to be treated as "directly and substantially" in issue and if it is

clear that the judgment was in fact based upon that decision, then

it would be res judicata in a latter case.

9. The Learned Family Court in its impugned order

observed that the appellant previously filed a petition u/s 13 of

the Act that was decided on 9.5.2000 and the appeal of this order

was also dismissed on 6.12.2001. The appellant filed another

petition on the same ground of cruelty and desertion which was

previously decided. Learned Family Court in its order observed

that the appellant and respondent were living separately before

filing of Divorce Petition No.125/1999 which was decided on

9.5.2000. According to the appellant, respondent deserted him

since 1993. There is no evidence whatsoever that appellant and

respondent lived together thereafter in these circumstances, no

new cause of action for cruelty was arisen. There was no evidence

that after acquittal from criminal case, the appellant had tried to

bring respondent back to matrimonial home. Learned Family Court

has observed that for desertion, both were equally liable. Finding

recorded by the learned Family Court that fresh petition would be

barred by principle of res judicata does not require any

interference. The judgments cited by the learned counsel for the

appellant are distinguishable on facts and did not provide any help

to him. In view of above discussion learned Family Court has

rightly dismissed the petition of the appellant on the ground of the

res judicata.

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10. Therefore, we find no illegality or infirmity in the order

of the learned Family Court. The appeal being devoid of merit, is

liable to be dismissed.

11. Hence, the appeal stands dismissed.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J

RAJ KUMAR CHAUHAN /17/39

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