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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 201 OF 2014
APPELLANT :- Shri Vinay S/o Shamrao Sawarkar, Aged 45,
Org.Petitioner on R.A. years, Occ. Service, R/o 304, Bldg. No.1,
Phase-I, 'Brahmand', Azad Nagar, Thane-400
607. (M.S.)
...VERSUS...
RESPONDENT :- Smt. Anita W/o Vinay Sawarkar, aged about
Org.Respondent on R.A. 48 years, Occ. Service, R/o C/o Shri
W.B.Bangade, 30, New Gnyaneshwar Nagar,
Manewada Road, Nagpur (M.S.)
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Mr. A.V.Khare, counsel for the appellant.
Mr. P.S.Sadavarte, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 17.07.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this family court appeal, the appellant-husband has challenged the order of the family court dated 27/06/2000 upholding a preliminary objection raised by the respondent that the petition filed by the appellant-husband for a decree of divorce on the ground of cruelty and desertion is barred by the principles of res judicata.
2. Few facts giving rise to the appeal are stated thus :- ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:02:18 :::
1707FCA201.14-Judgment 2/8 The appellant-husband (hereinafter referred to as the 'husband') and the respondent-wife (hereinafter referred to as the 'wife') were married on 05/06/1987 according to the Hindu rites and customs. The parties separated in September, 1987 and are residing separately since then. The petition was filed by the wife under section 9 of the Hindu Marriage Act against the husband for a decree of restitution of conjugal rights in January, 1988. The husband filed the written statement denying the claim of the wife and made a counter claim seeking a decree of nullity of marriage. According to the husband, the wife had concealed her age and educational qualifications and had secured his consent for the marriage by practicing fraud. It was stated that though the wife had only passed first year university exam, it was fraudulently conveyed to the husband and his family members that she possessed a degree. It was pleaded that though the wife was older to the husband, she had fraudulently concealed her age and depicted that she was younger to him. During the pendency of the petition for restitution of conjugal rights, the wife filed an application for withdrawal of the same. The wife was permitted to withdraw her petition under section 9 of the Hindu Marriage Act. The husband was permitted to continue with the counter claim. The counter claim was however dismissed for want of prosecution. The husband filed a miscellaneous application for setting aside the order of dismissal of the counter claim in default. The said application was also dismissed for ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:02:18 ::: 1707FCA201.14-Judgment 3/8 want of prosecution. After the counter claim filed by the husband for a decree of nullity was dismissed for want of prosecution, the husband filed a petition against the wife for a decree of divorce under section 13(1) (i-a) and (i-b) of the Hindu Marriage Act on the ground of cruelty and desertion. Apart from the facts pleaded by the husband in the counter claim for a decree of nullity, the husband further pleaded that the parties were residing separately for more than 14 years and the wife had deserted the husband without any just or reasonable excuse. The wife filed the written statement and denied the claim of the husband. An objection was raised in the written statement that the petition filed by the husband was barred by the principles of res judicata. An application was filed by the wife for dismissal of the petition filed by the husband on the principles of res judicata. The said application filed by the wife was allowed by the family court by the order dated 27/06/2002. The said order is challenged by the husband in this family court appeal.
3. Shri Khare, the learned counsel for the husband, submitted that the family court was not justified in dismissing the petition filed by the husband for a decree of divorce on the ground of cruelty and desertion. It is submitted that the principles of res judicata cannot be made applicable to the facts of this case as the counter claim filed by the husband for a decree of nullity of marriage was not decided ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:02:18 ::: 1707FCA201.14-Judgment 4/8 on merits and the same was dismissed for want of prosecution. It is submitted that the principles of res judicata would be applicable only when an issue in a matter between the same parties is decided by a competent court on merits. It is submitted that since none of the issues that fell for consideration, were decided by the family court in the counter claim filed by the respondent for a decree of nullity, the principles of res judicata would not apply. It is submitted that the family court should have considered that the counter claim was filed in 1988 and when the counter claim was filed, he could not have sought a decree of divorce on the ground of desertion as the parties could not have separated for a period of two years before the filing of the counter claim in June, 1988 as they were married in 1987. It is submitted that the order of the family court dated 27/06/2002 is bad-in-law and is liable to be set aside.
4. Shri Sadavarte, the learned counsel for the wife, supported the order of the family court. It is submitted that the family court had rightly allowed the application made by the wife for the dismissal of the petition filed by the husband on the principles of res judicata. It is stated that the facts pleaded in the counter claim and the petition filed by the husband are identical. It is submitted that in the circumstances of the case, the family court was justified in allowing the application filed by the wife for the dismissal of the Hindu marriage petition. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:02:18 :::
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5. On hearing the learned counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this family court appeal:-
(I) Whether the family court was justified in holding that the petition filed by the husband for a decree of divorce was barred by the principles of res judicata or constructive res judicata?
(II) What order?
To answer the aforesaid points for determination, it would be necessary to consider the admitted facts involved in this family court appeal. The parties were married on 05/06/1987 and they immediately separated within a period of three months and started residing separately. The wife had filed the petition for restitution of conjugal rights in January, 1988. The husband had filed a counter claim in June, 1988. In the said counter claim, the husband had sought a declaration of nullity of marriage under section 12 of the Hindu Marriage Act. The husband had based his claim for a decree of nullity on the basis of the alleged fraud committed by the wife in not disclosing her correct age and her educational qualifications before the solemnization of the marriage. The allegation pertaining to fraud in a petition seeking a declaration of nullity would surely pertain to the alleged concealment ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:02:18 ::: 1707FCA201.14-Judgment 6/8 or fraud played by the party before the solemnization of the marriage.
The declaration was sought by the husband under section 12(1)(c) of the Hindu Marriage Act on the ground that the consent of the husband was secured by fraudulently disclosing that the wife was younger to the husband when in fact she was older to him. The husband had pleaded that though the wife had only passed first year B.Sc. examination, she and her family members had disclosed to the husband and his family members that she had secured a B.Sc. degree. A decree of nullity was sought by the husband on the aforesaid pleadings which pertain to acts that had allegedly occurred before the solemnization of the marriage. The acts should relate to a period before the solemnization of the marriage as section 12, under which the husband had sought a declaration for annulment of the marriage by a decree of nullity would pertain to the fraud played by the wife and her family members before the solemnization of the marriage. In the petition filed by the husband in the year 2001 for a decree of divorce on the ground of cruelty and desertion, with which we are concerned, the husband had referred to some incidents that had taken place after the solemnization of the marriage from June 1987 to November 1987. On the basis of the allegations made in respect of incidents that occurred after the marriage, the husband had sought a decree of divorce on the ground of cruelty. Also, the husband had sought a decree of divorce on the ground of desertion by pleading that the wife had deserted the husband ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:02:18 ::: 1707FCA201.14-Judgment 7/8 and that the parties were residing separately for more than 14 years. A decree of divorce on the ground of desertion could not have been sought by the husband, by any stretch of imagination in June 1988 as there was no question of the parties residing separately for a period of two years before June 1988, as the marriage between the parties was solemnized in June 1987. It is rightly submitted on behalf of the husband that the petition filed by the husband in the year 2001 could not have been barred by the principles of res judicata or by the principles of constructive res judicata. The second petition filed by the husband could not have been barred by the principles of res judicata under section 11 of the Civil Procedure Code as the first petition i.e. the counter claim filed by the husband was not decided on merits and findings were not recorded by the family court on any of the issues that fell for consideration before the family court in the counter claim filed by the husband. For applying the principles of res judicata, the competent court should have decided the matter between the parties on merits and the issue that is decided in the matter between the parties should fall for consideration in the subsequent proceedings filed by one of the parties to the proceedings. In the instant case, since the counter claim filed by the husband was dismissed in default, the principles of res judicata could not have been applied. So also, the principles of constructive res judicata could not have been applied, specially in respect of the prayer made by the husband for a decree of divorce on ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:02:18 ::: 1707FCA201.14-Judgment 8/8 the ground of desertion as on the date of filing of the counter claim, the husband could not have sought a decree of divorce on the ground of desertion. Without considering these aspects of the matter, the family court allowed the application filed by the wife after holding that the petition filed by the husband in the year 2001 was barred by the principles of res judicata. The order of the family court is unsustainable and is liable to be set aside.
6. Hence, for the reasons aforesaid, the family court appeal is partly allowed. The order of the family court is quashed and set aside. The matter is remanded to the family court for deciding the petition filed by the husband on merits. The parties undertake to appear before the family court on 21/08/2017 so that issuance of notice to the parties could be dispensed with. The family court should make an endeavour to decide the petition filed by the husband within six months as the matters between the parties have lingered for long. In the circumstances of the case, there would be no order as to costs.
JUDGE JUDGE
KHUNTE
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