JUDGMENT - A.D. MANE, J.:---This is an appeal from wife from the decree of dissolution of marriage on a petition filed by the respondent-husband under section 13(1)(ib) of the Hindu Marriage Act, 1955 (for short, the Act).

2. The parties were married some eighteen years ago and from this wedlock one daughter was born to them. In 1972 their relations appears to have become strained on account of the family dispute. It has been alleged by the respondent-husband that the appellant did not like to reside in the joint family and insisted him to separate from his brothers and on his refusal to do so the appellant left him voluntarily and has been residing with her parents.

3. Therefore, on January 25, 1974 the respondent filed a petition for restitution of conjugal rights under section 9 of the Act against the appellant which was ultimately dismissed on the ground that the respondent has failed to prove that the appellant has withdrawn from his society without any reasonable cause. After dismissal of his petition, the respondent also filed the present petition for a decree of dissolution of marriage on the ground of desertion under section 13(1)(ib) of the Act.

4. On going through the evidence, the learned trial Judge has granted the decree, as according to him the appellant has failed to prove the allegation of cruelty which she has attributed to the respondent. It is, however, to be noted that the learned trial Judge was conscious of the fact that the finding in the earlier petition for restitution of conjugal rights would operate as an estoppel in the present petition but for express pleading having not been made by the appellant in her written statement, the learned trial Judge was of the view that the principle of res-judicata cannot be applied and accordingly passed the decree for divorce in favour of the respondent which is being challenged by the appellant.

5. Before I turn to the argument of Shri Naik, the learned Counsel for the appellant, it is necessary to point out that during pendency of this appeal a fresh finding on the issue of estoppel was raised and remitted to the learned trial Judge for his finding. The learned trial Judge has certified his finding on January 10, 1989 holding that the present petition is barred by principle of res judicata.

6. Keeping reliance on the additional finding recorded by the learned trial Judge, Shri Naik the learned Counsel for the appellant urged that the petition for divorce is liable to be dismissed since it is barred by principle of res-judicata. In this context, it has been submitted that in the earlier petition the appellant has established that she has reasonable excuse for withdrawal form the society of the respondent and that being a legal ground for dismissal of the petition for decree of restitution of conjugal rights and the subsequent petition for divorce on the ground of desertion is not maintainable. In this context, he has relied upon a ruling in case of (Devi Singh v. Sushila Devi)1, A.I.R. 1980 Raj. 48 and (Ranjana Kumari v. Nand Kishor)2, 1981(2) D.M.C. 236.

7. Shri Bora, the learned Counsel for the respondent, on the other hand, urged that the appellant cannot take advantage of additional finding when no express issue of estoppel was pleaded by her in her written statement in resisting the petition for decree of divorce. According to him dismissal of the earlier petition under section 9 is no bar for a petition under section 13(1)(ib) of the Act.

8. The contentions of the learned Counsel for the parties raise a short but important question as to whether the expression 'withdrawal from the society of the other' spouse as mentioned in section 9 of the Act is identical in its connotation and legal effect to the expression 'desertion' as used in section 13(1)(ib) of the Act.

9. At the outset, it may be pointed out that the decisions upon which reliance is placed by the learned Counsel for the appellant are not exactly on the question which I am required to deal with. In case

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