Vinay Shamrao Sawarkar vs Anita Vinay Sawarkar
2017 Latest Caselaw 4576 Bom

 1707FCA201.14-Judgment                                                                         1/8


              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.)

 ---------------------------------------------------------------------------------------------------
                       Mr. A.V.Khare, counsel for the appellant.
                   Mr. P.S.Sadavarte, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        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 :-

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

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

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.

1707FCA201.14-Judgment 5/8

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

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

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

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