Uttarakhand High Court
FA/220/2019 on 17 August, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE R.C. KHULBE
FIRST APPEAL NO. 220 OF 2019
17TH AUGUST, 2022
BETWEEN:
Sudhir Kumar .....Appellant.
And
Ridhi ....Respondent.
Counsel for the Appellant : Mr. Piyush Garg, learned counsel.
Counsel for the Respondent : Mr. M.S. Tyagi, learned Senior
Counsel assisted by Mr. Sunil
Chandra, learned counsel.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
The present appeal is directed against the
judgment and order dated 18.10.2019, passed by the Family
Court, Pauri Garhwal. The Family Court has dismissed the
divorce petition, preferred by the appellant-husband, under
Section 13(1)(i-b) of the Hindu Marriage Act, 1955 i.e. on the
ground of desertion, holding that the said petition was barred
by res judicata in the light of the fact that the appellant-
husband had earlier preferred a divorce petition under
Section 13(1)(i-a) of the Hindu Marriage Act, 1955 i.e. on the
ground of cruelty, being Matrimonial Case No.133 of 2009,
which had been dismissed by the Family Court and the first
appeal against the same had also been dismissed on
22.06.2017, by the High Court of Uttarakhand being First
Appeal No.65 of 2013.
2. We have heard the learned counsels, and perused
the impugned judgment and order as well as the record, and
we find that the impugned judgment and order borders on
perversity. The Family Court has failed to appreciate that the
earlier petition had been preferred on the ground of cruelty in
the year 2009. The appellant-husband had pleaded that the
respondent-wife has deserted him on 25.02.2009. Obviously,
even when the earlier petition was preferred in the year
2009- being Matrimonial Case No.133 of 2009, the ground of
desertion was not available to the appellant-husband to raise,
and he had not pleaded that as a ground to seek divorce.
3. We fail to appreciate and understand as to how the
Family Court could have concluded that the present petition-
on the ground of desertion, was barred by res judicata when
the issue of desertion was not even the issue raised or
decided in the earlier around, i.e. Matrimonial Case No.133 of
2019, wherein the issue of cruelty was raised and decided.
4. The learned Senior Counsel appearing for the
respondent has submitted that, when the appellant-husband
preferred the First Appeal before this Court, being First
Appeal No.65 of 2013, he had raised the issue of desertion
before this Court.
5. A perusal of the judgment dated 22.06.2017,
passed by this Court in First Appeal No.65 of 2013, shows
that even this Court had observed that the ground of
desertion could not have been raised in the earlier petition,
when the earlier petition was preferred, since desertion was
pleaded from 25.02.2009, and the earlier petition was
presented on 24.12.2009. Therefore, there is no merit in the
submission of the learned Senior Counsel appearing for the
respondent that the ground of desertion had been raised by
the appellant in the first appeal preferred by him before this
Court. The impugned judgment and order reflects poorly on
the knowledge and understanding of the learned Presiding
Judge, Family Court, who has passed the impugned judgment
and order.
6. Accordingly, we set-aside the impugned judgment
and order, and remand the case back to the Family Court for
its decision on merits. Considering the fact that the present
petition had been preferred the appellant-husband in the year
2019, and the parties have been litigating since the year
2009, we direct the Family Court to expedite the disposal of
the divorce petition. The same should be disposed of within a
period of one year from today. Neither of the parties shall be
granted any undue adjournment.
7. The appeal stands disposed of in the aforesaid
terms.
(VIPIN SANGHI, C.J.)
(R.C. KHULBE, J.)
Dated: 17th August, 2022
NISHANT
