K.S. Mudagal, J.

Being aggrieved by the judgment and decree dated 05.12.2013 passed by the Vth Additional Principal Judge, Family Court, Bengaluru in MC No. 1076/2010, the appellant/wife has preferred the above appeal under Section 19(1) of the Family Court Act. By the impugned judgment and decree the trial Court has allowed the petition of the respondent-husband for divorce.

2. The respondent filed M.C. No. 1076/2010 against the appellant for divorce. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court. In the petition, the petitioner/husband alleged that the respondent has deserted him since 01.04.2005 and subjected him to cruelty imputing him the communicable HIV/AIDS disease, isolated him in the house and humiliated him. He alleged that on such allegations respondent took him before the State Women's Commission and separated him from his daughter etc.

3. The respondent denied all the allegations made against her and contended that it is the petitioner who subjected her to cruelty, which forced her and her daughter to take shelter with her parents and he failed and neglected to maintain them. She further contended that the Principal Civil Judge (Sr.Dn.), Shimoga by the order dated 11.01.2007 dismissed the husband's earlier petition in MC No. 31/2006 for restitution of conjugal rights filed on the same grounds holding that the petitioner has subjected her to cruelty and she has reasonable grounds to withdraw from his company and therefore, again on the same grounds the petitioner cannot seek divorce.

4. The respondent further contended that the petitioner failed to discharge his marital duty towards the respondent and the parental duty towards daughter which resulted in she claiming maintenance under section 125, Cr.P.C. and daughter filing suit for maintenance in OS No.445/2009 which culminated into decree against him. Thus, sought for dismissal of the petition.

5. Before the Trial Court, the petitioner got himself examined as PW1 and got marked Exs.P1 to P14. The respondent got examined herself as RW1 and got marked Exs.R1 to R7.

6. The Trial Court by the impugned judgment allowed the petition and granted decree for divorce holding that:

(i) respondent has deserted the petitioner since 2005 without any reasons and animus to join him;

(ii) subjected the petitioner to cruelty making complaint against him before the Principal Secretary of Women and Child Welfare Department, Bengaluru imputing him HIV/AIDS and;

(iii) the marriage of the parties has become dead-wood.

7. The learned counsel for the respondent contends that despite the clear finding in MC No. 31/2006 that the cruel conduct of the petitioner forced the respondent to withdraw from his company, the trial Court has granted decree on the same ground. The appellant's counsel, therefore, contends that the petition itself is hit by the principles of res judicata and the trial Court without meeting that point granted the decree, thus, it is perverse.

8. So far as the finding of the trial Court that the marriage has become dead-wood and therefore the petitioner is entitled for decree of divorce, the learned counsel for the respondent contends that the said reasoning is contrary to the ratio laid down by the Hon'ble Supreme Court in the following judgments;

(i) Darshan Gupta v. Radhika Gupta, 2013 AIAR 674;

(ii) Neelam Kumar v. Dayarani (2010) 13 SCC 298.

9. Learned counsel for the petitioner supporting the judgment of the trial Court contends that admittedly, the respondent has withdrawn from the society of the petitioner since 2005 and she has made complaints to the Principal Secretary lo the Women and Child Welfare Department, Government of Karnataka imputing HIV/AIDS to the petitioner without proving the same. He contends that therefore, (he trial Court is justified in granting the decree.

10. In support of his contention the learned counsel for the petitioner relied upon the following judgments:

(i) Vinod Kumar Su