1 fca-127-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 127 OF 2010 WITH CIVIL APPLICATION NO. 256 OF 2010 Inderjeet Kaur Iqbalsingh Bagga .. Appellant Vs. Shri Iqbalsingh Surjitsingh Bagga .. Respondent Mr. Sugandh B. Deshmukh for appellant. Ms. Aneeta Katariya for respondent. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. NOVEMBER 22, 2010. P.C. 1. Heard Mr. Deshmukh, the learned counsel for the appellant- wife. Ms. Katariya, the learned counsel, appears for the respondent- husband. 2. This appeal filed under Section 19 of the Family Courts Act, 2 fca-127-10 1984 arises from the order dated 19/7/2010 passed by the Family Court at Pune thereby rejecting the Application filed at Exh. 36 in Petition A No. 330 of 2007 under Section 11 of C.P.C. As per the appellant if the said application was allowed, Petition A No. 330 of 2007 filed by the respondent before the Family Court ought to have been dismissed and, therefore, the impugned order is an appealable order. 3. We are deciding this appeal on its merits and not on the point whether it is maintainable. 4. The parties were married on 11/5/1988. On 24/3/1990, the husband filed Petition A No.170 of 1990 before the Family Court at Pune seeking divorce on the ground of cruelty i.e. under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (the Act for Short). On account of the order passed by this court, the said petition came to be transferred to the court of Civil Judge, S.D. at Shrirampur and was re-registered as HM Petition No. 40 of 1991 and while this petition was pending, the appellant-wife also filed a separate petition seeking restitution of conjugal rights under Section 9 of the Act on or about 19/9/1990 in the court of the learned Civil Judge, S.D. at Shrirampur. Both the petitions were decided by two different 3 fca-127-10 judgments rendered on the same day i.e. 12/1/1995 and the petition for divorce was dismissed and the petition filed by the wife for restitution of conjugal rights was allowed. This decree passed under Section 9 of the Act came to be challenged by the husband in Regular Civil Appeal No. 163 of 1995 and it was dismissed by the learned Additional District Judge at Shrirampur on 4/7/2001. 5. After about six years, the respondent approached the Family Court and filed Petition A No. 330 of 2007 for seeking divorce under Section 13(1)(i-b) of the Act i.e. on the ground of desertion. Admittedly, the respondent amended the petition so as to seek dissolution of marriage under Section 13(1-A)(ii) of the Act i.e. on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights and the ground of desertion was deleted. It is at this stage that the appellant submitted an application under Section 11 of C.P.C. i.e. on the ground of res judicata and prayed that the petition filed by the husband seeking divorce under Section 13(1-A)(ii) of the Act be dismissed. By the impugned order the said application at Exh. 36 has been rejected. 4 fca-127-10 6. As per Mr. Deshmukh the learned counsel for the appellant, after the decree for restitution of conjugal rights was confirmed by the Lower Appellate Court on 4/7/2001, it was not permissible for the husband to file a petition for dissolution of marriage and he cannot be allowed to take the benefit of his own wrongs in as much as he did not take any steps for the implementation of the order passed by the Family Court for restitution of conjugal rights and, therefore, the doctrine of res judicata would operate. We are not impressed by these submissions. The learned Judge of the Family Court observed that the husband was seeking divorce in the second petition on the ground that there has no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights and there would not be any bar under Section 11 of CPC to entertain such a petition. Mr. Deshmukh placed reliance on a Division Bench judgment of Kerala High Court in the case of C. Sarala vs. K. Nalinakshan [AIR 1991 Kerala 362] and more particularly the following observations in para 5:- “5. The essence of the doctrine of Res Judicata is that judgment of a court upon a point is conclusive between the same parties and is, as a plea, a bar or as evidence, conclusive, 5 fca-127-10 in a subsequent proceeding. The rule of res judicata bars the trial of an issue which arose directly and substantially in a previous proceeding and has been adjudicated upon in such proceeding. The rule is founded in two principles. Firstly a litigant should not be vexed twice for the same cause and secondly public policy requires that all litigations must end at some point of time.” 7. Section 13(1-A)(ii) of the Act states that either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. It is well settled that the right to apply for dissolution of marriage under Section 13(1-A)(ii) of the Act is available to either of the spouses and it is a matter of evidence for the court to examine whether the husband against whom a decree of restitution of conjugal rights was passed was taking advantages of his own wrongs and if the court is so satisfied, the petition would be dismissed on 6 fca-127-10 merits. Thus, it is a matter of evidence before the Family Court and the doctrine of res judicata as set out in Section 11 of CPC would not be applicable in the instant case. Hence, in our opinion, the view taken by the Family Court in rejecting the application does not suffer from any infirmities in law and, therefore, this appeal must fail at the threshold. 8. Hence, the appeal is dismissed. The hearing in Petition A No. 330 of 2007 is hereby expedited. The said petition or any other application pending in the same petition will have to be decided on its own merits and without being influenced by any of the observations made in this order. 9. Civil Application No. 256 of 2010 does not survive and disposed as such. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)