Sanjay Chhaganlal Bhutada vs Rajni W/O Sanjay Bhutada
2005 Latest Caselaw 1433 Bom

JUDGMENT

R.C. Chavan, J.

1. Taking exception to dismissal of his Hindu Marriage Petition bearing No. 34/98 by the learned Civil Judge, Senior Division, Khamgaon and confirmation of its dismissal in Regular Civil Appeal No. 66/2001 by the learned Additional District Judge, Khamgaon, the petitioner husband has preferred this Second Appeal. In view of the directions by the Hon'ble the Acting Chief Justice on 30-11-2005 on application moved by the appellant, the matter has been listed for out of turn hearing.

2. The appellant was married to respondent Rajni on 21-5-1991. After marriage there was discord in the family, and, according to the appellant, the respondent left his company in the year 1992. Therefore, he filed Hindu Marriage Petition bearing No. 26/1994 for decree of divorce on the twin grounds of cruelty and desertion. This petition was dismissed and R.C.A. No. 87/96 came to be filed by the appellant. This appeal too was dismissed by the learned Additional District Judge, Khamgaon. The appellant approached this Court by preferring Second Appeal No. 126/98 which was dismissed by judgment dated 28-4-1998. The appellant had preferred Special Leave Petition before the Supreme Court which too according to the learned Counsel for the parties was dismissed on 27-7-1999.

3. Before the dismissal of Second Appeal by this Court, on 30-3-1998, the appellant filed another marriage petition bearing No. 34/98 before the Civil Judge, Senior Division, Khamgaon for divorce on the sole ground of desertion. He contended that the earlier petition was dismissed because the requisite period of desertion of two years was not over. Since at the time of presentation of marriage petition No. 34/98 on 30-3-1998 desertion was for more than two years, the appellant prayed that their marriage may be dissolved.

4. The respondent filed application under Order 7 Rule 11 of Civil Procedure Code for rejecting petition on the ground that the petition did not disclose any cause of action. The application was rejected. She challenged the said order by filing Civil Revision Application No. 737/2000 which was rejected by this High Court, giving liberty to the parties to raise all the points which were raised in the civil revision application before the Trial Court.

5. Marriage Petition bearing No. 34/98 was resisted by the respondent wife, on the ground, among others, that it was barred by the principle of res judicata. The learned trial Judge, held, after hearing parties that it was so barred, and therefore, dismissed the petition. The judgment was affirmed on appeal by the learned Additional District Judge, Khamgaon, giving rise to the present appeal.

6. While admitting this petition this Court had framed following question of law :

Whether the Courts below were justified in holding without recording the evidence that the petition of the present appellant/petitioner is barred by the principle of res judicata, when he claims divorce on the ground of desertion even for a further period which was not covered by the previous petition?

7. Relying on the observations in the order admitting the appeal, the learned Counsel stated that the desertion is a continuing wrong, and therefore, every day of desertion would give rise to a fresh cause of action, making any previous decision about desertion irrelevant. Clause (i-b) of Sub-section (1) of Section 13 of Hindu Marriage Act, reads as under :

13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(i-b) "has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or.

8. What is required to be proved for a decree under this clause is that other spouse "has deserted" and not that other spouse "is not living in the company". Therefore, desertion is not same as being away. It has to be shown that other spouse has deserted. Therefore, it would have to be shown that respondent had wilfully abandoned the company of petitioner as a distinct event, subsequent to the filing of second petition. It may at least have to be shown that the appellant had made an attempt to seek return of respondent to matrimonial home after first petition was filed and that such attempt was thwarted, giving rise to a fresh cause of action. Mere continuance of separate residence since before the filing of first petition till second petition was filed would not constitute a separate cause of action for seeking decree on the ground of desertion.

9. It is indeed strange that the appellant an educated person expected that his wife would be held to have wilfully kept herself away from his company when he was all along fighting litigation in hierarchy of Courts right up to the Apex Court. It may be seen that after R.C.A. No. 87/96 was dismissed by the Additional District Judge on 10-3-1998, the appellant promptly filed the 2nd Petition for divorce on 30-3-1998, while at the same time, approaching this Court by preferring Second Appeal No. 126/98, and after failing in this Court, taking up matter to the Supreme Court by filing a Special Leave Petition. Therefore, since there was no occasion for the respondent to take a conscious decision of withdrawing from the company of appellant, from the day the first petition was dismissed till the second petition was filed, the respondent must be held to have lacked the necessary animus deserandi and therefore, it cannot be said that there is any fresh cause of action for filing petition.

10. The learned Counsel for the appellant pointed out that the decision in the first petition would not operate as res judicata because the first petition was dismissed on the ground that the period of two years of separation was not completed. The learned Civil Judge had held towards the end of para No. 6 of the judgment in HMP 26/94 as under :

6. ... So by technical point of view the petition for claiming dissolution of marriage on the ground of desertion for continuous period of two years is not found well within the purview of law. Hence there is no any cause of action for filing of this petition on the ground of desertion as claimed by the petitioner.

The learned Counsel for appellant urged that in face of this observation it was not open to the learned trial Judge to go into merits of appellant's case for desertion. The learned Trial Judge should not have gone into the question that respondent had actually deserted petitioner. The learned Counsel for the appellant submitted that since the learned trial Judge should not have gone into merits of question of desertion while deciding the first petition, it was not permissible to invoke Section 11 of the Civil Procedure Code for non-suiting the petitioner. For this purpose, he placed reliance on number of judgments. In Allahabad Development Authority v. Nasiruzzaman and Ors. reported 1996 (6) SCC 424, the Court held that principle of res judicata does not apply to statutory direction or prohibition and that it could not be overridden or defeated by a previous judgment. This observation came in the context of provisions of the Land Acquisition Act. When the previous decision was found to be erroneous on its face it does not operate as res judicata.

11. First, this judgment is not authority for the proposition that if the Judge of trial Court is satisfied that the decree cannot given on one ground, he need not decide the other contentious issues raised. The Trial Judge is required to stay his hands and not go into the contentious question of facts, only if he concludes that he does not have jurisdiction to do so. In this case, since the learned trial Judge had the jurisdiction to decide the question of factum of desertion, there is nothing wrong in his having examined the evidence as to whether it was proved that respondent wife had deserted the appellant husband.

12. The learned Counsel for the appellant sought to reply on the observation of this Court while dismissing respondent's civil revision application No. 737/2000 to the following effect :

It is not in dispute that in the earlier proceedings, since two years mandatory period for separation was not elapsed and the proceedings were initiated by the husband prematurely and, therefore, on that technical ground the Court has disposed of the earlier proceedings under Section 13 of the Act.

13. It is not held by the Court that the earlier proceedings were disposed of by only on that technical ground. If parties had taken the trouble of showing the judgment in the earlier proceedings to the Court, the observation would have been different. In any case, observation of the High Court on question of what was held in a judgment whereby a proceeding was decided would not result in erasing an important part of that judgment. Therefore, it is not necessary to take help of observation of High Court in order to find out what learned trial Judge had decided in the first round, since the judgment is very much available and not lost. The Judge had gone into the question of whether desertion by respondent was proved.

14. Upon considering the evidence tendered, the learned trial Judge held that it was not proved that the respondent wife had deserted her husband. As already recounted this finding was challenged before the learned Additional District Judge in R.C.A. No. 87/96. The learned Additional District Judge had duly considered as to whether conduct of respondent amounted to desertion. He had concluded that separation between the couple was not with intention to end cohabitation. He found that the respondent left her matrimonial home to join her duties as a lecturer at Paratwada where she get employment, in the context of the fact that she had specifically told her husband before the marriage that she would be serving even after her marriage. As already recounted, second appeal against this judgment and Special Leave Petition to the Supreme Court from the judgment in second appeal have been dismissed. Thus, the finding that the respondent had not deserted the appellant has been confirmed right upto the highest Court.

15. In Pramod P. Patkar v. Vasundhara , the Court held that when wife issues a notice to husband expressing her intention not to return to the matrimonial home, that itself would be the date from which period of desertion would start. In the instant case it is not shown that the respondent has issued any such notice, indicating her resolve not to return. On the other hand written statement of respondent before the trial Court clearly shows that she had categorically stated that she was all along ready to cohabit with petitioner, and was also ready to allow the petitioner to cohabit with her at the place of her employment, namely Paratwada. In view of this, the decision in Pramod v. Vasundhara is of absolutely no use.

16. The decision of Guwahati High Court Basudeb Nath v. Smt. Diptikona Nath is unhelpful, because in that case Court had specifically observed as under:

Earlier suit was dismissed on 21-4-1988 holding that the plea for decree of divorce for desertion under Section 13(i)(b) of the Hindu Marriage Act is premature and does not appeal to be tenable in law as the plea of alleged desertion was not two years immediately proceeding the presentation of the petition. On that ground, the plea of divorce was not considered in the earlier suit and nothing was decided on merit and this suit has been filed in the year 1992 i.e. in September, 1992 and definitely by this time the period of two years have been completed." If the earlier proceedings was not decided on merits but was dismissed on technical grounds, after completion of requisite period, fresh petition may lie.

The same are the observations in Tarak Chandra Dutta v. Jagdish Chandra Deo reported at .

17. In Bengal Waterproof Ltd. v. Bombay Waterproof Mft. Company , the question was regarding continuous acts of infringement of trademark giving rise to continuous cause of action. In this context, the Court held that the provisions Order 2, Rule 2 of Civil Procedure Code cannot be invoked,

18. In Rameshwar v. Jot Ram reported at , the Court held that right to relief is to be determined on the date of institution of proceedings and procedural delays cannot affect rights crystallised in initial cause of action. It is not clear that as to how the authority can help the appellant.

19. In Nagnath v. Kishan reported in 1972 Mh.L.J. 334, the Court observed that challenge of res judicata should not be ordinarily disposed as a preliminary issue and it should normally be tried along with other issues. In this case, the learned trial judge has undisputedly tried the question of res judicata as a preliminary issue. But it may be seen that the only ground on which decree of divorce was sought in the petition was desertion. If the only issue raised was already covered by previous judgment there would be no occasion to try and to dispose of all other issues, since no other issue would remain. In any case, the decision is authority for the proposition that as what should be the normal course. In the instant case, on facts enumerated it may be seen that the decision taken by the learned trial Judge was right.

20. In Prakash Chandra Gupta v. Kamla Gupta , the Court held that though the ground of desertion was same the period was different, and so the cause of action would be different and therefore, principle of constructive res judicata would not apply. The facts in the context of which this observation came are as under.

21. In the year 1965, the husband has filed petition for judicial separation under Section 10 of the Hindu Marriage Act which came to be dismissed on 25-3-1968. He then filed a petition for divorce on the ground of adultery which was dismissed on 16-5-1975. In course of hearing of an appeal before the High Court, the husband moved an application for withdrawal of petition with leave to file a fresh petition. After withdrawal of this petition, 3rd petition was filed on the ground of cruelty and desertion since May, 1963 wherein the wife took the plea that the petition was barred by principle of constructive res judicata. The observations of the Court in para 7 of the judgment would show that they came in altogether different context and cannot be applied to the present fact situation.

22. The learned Counsel for appellant also relied on a newspaper report of a Supreme Court decision where the Court ruled that its consistent view has been that where it is found that marriage between the parties has been rendered a deadwood, exigency of the situation demands dissolution of such a marriage by a decree of divorce to put an end to the agony and bitterness. He submitted that this marriage too had became dead wood and so ought to be dissolved.

23. Fortunately, the newspaper report elaborately and sufficiently gives facts of that case and also mentions that the trial Court had granted a decree of divorce which High Court set aside and was restored by the Apex Court.

24. A judgment is an authority for what it decides in the particular context and cannot be read shorn of its context. A husband who does not prove matrimonial wrong on the part of his wife cannot be allowed to take advantage of forced separation during period of litigation to get rid of the wife and to start a. new innings. It cannot be overlooked that the parties have a child and the appellant seems to be in a hurry to snap ties as can be seen from his filing a fresh petition for divorce while at the same time filing a second appeal.

25. In view of all this, it would have to be held first that while separation of spouses can be said to be a continuing act, "desertion" requires not just separation of respondent but also mental state of abandoning matrimonial home. Therefore, mere proof of period of separation of respondent would not give rise to cause of action. Both the Courts were justified in holding that the petition was barred by the principle of res judicata. It may be proper to observe that the appellant was thoroughly unjustified in filing petition for divorce, even before his second appeal before the High Court arising out of his earlier petition was disposed of.

26. In view of this, since the respondent wife could not have had any opportunity for resuming cohabitation during the period the appellant was fighting with the respondent in the hierarchy of Courts, there is no question of the respondent hearing animus deserendi ruling out any cause for the appellant to seek divorce on the ground of desertion. The appeal is, therefore, dismissed.