Bhanushankar Kaushik vs Sunita Kaushik
2023 Latest Caselaw 265 Chatt

                                          1

                                                                          NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                              FAM No. 103 of 2019

                      Judgment Reserved on 11.10.2022

                      Judgment Delivered on 13.01.2023

    Bhanushankar Kaushik, S/o Shri Baldau Prasad, aged about 38 years, R/o
     Village Hirri, Tehsil Bilha, District Bilaspur, C.G.

                                                                   ----Appellant

                                      Versus

    Sunita Kaushik, W/o Bhanushankar Kaushik, aged about 35 year, D/o
     Jageshwar Kaushik, R/o Village Kua, Police Station and Tahsil Takhatpur,
     District Bilaspur, C.G

                                                               ---- Respondent

For Appellant            Mr. Shantam Awasthi, Advocate.
For Respondent           Mr. Sumit Shrivastava, Advocate.


                   Hon'ble Shri Justice Goutam Bhaduri &

                 Hon'ble Shri Justice Radhakishan Agrawal

                                 C A V Judgment

Per Radhakishan Agrawal, J.

1. Appellant / husband preferred this appeal under Section 19 (1) of the

Family Courts Act, 1984 challenging the judgment and decree dated

28.02.2019 passed by the learned Additional Principal Judge, Family

Court, Bilaspur, C.G. in Civil Suit No.15-A/2018, whereby the case of

appellant / husband for grant of decree of divorce was dismissed.

2. Facts relevant for disposal of this appeal are that appellant / husband

married the respondent / wife on 14.03.2007 according to the Hindu rites

and rituals and from their wedlock, one male child was born. After

marriage, the wife started quarreling and misbehaving with the husband

and his parents. In the year 2009, the wife left the company of the

husband and went to her matrimonial home. After several persuasion by

the appellant / husband, she did not return as she never had any intention

to start cohabiting with the husband. It is stated that the wife and her

family members used filthy language and on several occasions tried to

hurt and caused injury to him, as a result of which report was lodged by

the appellant / husband on 03.04.2010 at police station Takhatpur, District

Bilaspur, C.G. The wife also lodged a false report in relation to the alleged

demand of dowry against the husband which was later on rejected. It is

further stated that the appellant / husband was willing to join the company

of the respondent / wife but during the conciliation, it was revealed that

the wife was not willing to reside with the husband and this shows

irretrievable breakdown of marriage between them. Earlier, the husband

has filed a petition for divorce vide Civil Case No.116-A/2011 dated

21.03.2017 but the said petition was dismissed.

In the year 2014, husband came to know that his wife is living

adulterous life with a person namely Mewaram Satnami and thereafter he

lodged a report on 17.10.2014 at police station Hirri, Bilaspur and after

desertion, since five years she is residing separately from the husband

and leading a married life with the said Mewaram and, therefore, has

stated that since the year 2009, there is no relation between them, the

wife deserted, abused and misbehaved with him, therefore, it has become

extremely difficult for him to live with her any longer and has filed a suit

seeking divorce.

3. In reply, the respondent / wife has denied all the allegations levelled

against her and has stated in para 3 that appellant is a Computer

Operator in police station and he has approached the police officers and

finished the case for demand of dowry against him. She has stated that

earlier also the appellant had filed a case seeking divorce on 21.03.2017

which was rejected by the trial Court. She has also stated that she was

not living in adultery and has denied the allegations levelled against her

by the husband.

4. On the basis of the above averments made by the parties, the following

issues were framed:-

i) Whether the respondent / wife was treating the appellant / husband with cruelty after marriage i.e. 14.06.2007?

ii) Whether the appellant / husband has deserted the respondent / wife continuously for a period of two years from 11.01.2018?

iii) Whether the present application is maintainable?

iv) Relief and cost?

After affording opportunity of hearing to the parties, the Family Court

without any opinion on the issues framed has held that the second

petition is barred by the principle of res judicata under Section 11 of the

CPC and hence, dismissed the suit.

5. Learned counsel appearing for the appellant / husband submits that the

impugned judgment of the trial Court dismissing the suit on the ground of

it being hit by the principle of res judicata is per se illegal and contrary to

the material available on record. Respondent / wife admitted in cross-

examination that she is living separately from the husband for the last 7-8

years. Further, as per the evidence on record, it is also clear that the wife

is leading an adulterous life but the Family Court did not consider all

these grounds and dismissed the suit holding that it is not maintainable in

light of the principle of res judicata as the husband had earlier also filed a

suit for divorce against the respondent / wife.

6. Per contra, learned counsel for the respondent / wife submits that the

impugned judgment and decree passed by the Court below is well

merited which do not call for any interference.

7. We have heard learned counsel for the parties and perused the material

available on record.

8. Based on pleadings of the parties, the Court below framed three issues

for consideration i.e. cruelty, desertion and maintainability of divorce

petition. The Court below did not consider grounds of cruelty and

desertion although evidence in this regard have been led by both sides,

proceeded to decide Issue No.3, which relates to maintainability of

divorce petition. Vide order impugned, divorce petition of appellant /

husband was dismissed on the ground of res judicata by holding that

earlier divorce petition of husband was dismissed and second suit for

divorce is not based on any new facts or evidence, therefore, it is barred

by principle of res judicata.

9. Perusal of record reveals that earlier appellant / husband filed petition

against respondent / wife for grant of decree of divorce, which came to be

dismissed vide order dated 21.03.2017 on the ground that husband failed

to make out ground for divorce. After dismissal of divorce petition and on

coming to know that wife had been living in adultery with the other

person, husband again filed suit for divorce categorically pleading in para-

6 that the wife is living in adultery with one person. In para-7 husband had

specifically pleaded that cause of action to file suit for divorce arose after

dismissal of earlier divorce petition when husband came to know that the

wife is leading adulterous life with one person.

10. Section 11 C.P.C. defines 'res judicata' and lays down the conditions

under which a Court is precluded from trying any suit or issue. Section 11 is

extracted below for ready reference:-

"Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

11. A bare reading of above quoted provision makes it clear that the essence

of principles of res judicata is '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 subsequent

proceeding.

12. In case at hand, grounds of first divorce petition are not available on

record, whereas second divorce petition was filed inter alia on the ground of

adultery, pleading that this ground had become available to appellant /

husband after dismissal of first divorce petition. In support thereof, husband

has also filed certain documents obtained under the Right to Information

Act, 2005 in which wife is shown to be family member of one Mewaram

Satnami. Respondent-wife in her reply to divorce petition pleaded that

grounds urged in Para-9 & 10 of divorce petition have already been

adjudicated upon, but failed to file documents in support thereof i.e. copy of

first divorce petition, written statement or judgment.

13. To decide question of res judicata, one has to examine the plaint, written

statement, issues and judgment of previous case to find out whether the

issue in hand was directly and substantially in issue in previous litigation. In

case at hand, there was nothing before the Court below to arrive at

conclusion that the issue in present suit for divorce was directly and

substantially the same in issue in earlier suit. Perusal of the impugned order

reveals that there is absolutely no discussion in regard to the bar of res

judicata except the observation that instant divorce petition is based on

facts which were in the knowledge of appellant during pendency of previous

divorce petition. Since no material i.e. grounds of the first divorce petition

etc., was available before the Court below to arrive at a conclusion that

present divorce petition is hit by principle of res judicata, the Court below

ought not to have treated second divorce petition as being hit by res

judicata only on the basis of decision in first divorce petition.

14. There is yet another error committed by the Court below. On the basis of

pleadings of the parties, the Court below also framed issues of cruelty and

desertion, recorded evidence produced by the parties, but surprisingly did

not give any finding thereon, which was required to be done mandatorily. It

is well settled that once issues are settled, the Court is duty bound to give

findings on all issues so framed. The reason for this is simple. If the finding

of Court below on the preliminary issue, holding that proceeding is not

maintainable, is set aside, then the matter need not be remanded and

appellate or revisional Court will have the benefit of the findings of other

issues.

15. In the result, appeal is allowed. Impugned order is set aside and the

matter is remanded back to the learned Family Court concerned for fresh

decision on merits. The parties are directed to appear before the Court

below on 07.02.2023. The learned Family Court is directed to frame specific

issue with regard to maintainability of suit under Section 11 of the Code of

Civil Procedure, allegation of 'adultery' made by the husband and decide

the same along with issues of cruelty and desertion already framed by it, in

accordance with law. The Court below is further directed to decide the case

within a period of six months from the date of first appearance of the parties

before it. There shall be no order as to cost.

                 Sd/-                                   Sd/-
            (Goutam Bhaduri)                     (Radhakishan Agrawal)
                 Judge                                 Judge




 Akhilesh