ORAL JUDGMENT:- This Second Appeal is filed by the Original petitioner/Husband. An application for grant of divorce under section 13(1A)(ii) of Hindu Marriage Act, 1955, hereinafter mentioned as "Act"; was moved by him against the present respondent, the said application was granted by the Civil Judge, Senior Division, Nagpur on 23-4-1982 and the present respondent - Wife carried appeal against it under section 28 of the Hindu Marriage Act, vide Civil Appeal No. 358 of 1982. The said appeal has been allowed by the 5th Additional District Judge, Nagpur on 24-7-1987. The present Second Appeal under section 100 of Code of Civil Procedure has been admitted by this Court on 27-7-1988, on questions of law as given in the appeal memo as substantial questions of law involved therein. The said questions read as under:-

(1) Whether the Lower Appellate Court was right in holding that the decision dated 8-2-1977 in Second Appeal No. 385 of 1971 operates as res judicata in the present case?

(2) Whether there is change in law in view of the decision of the Supreme Court dated 19-8-1977 reported in AIR 1977 SC 2218, after the decision of Second Appeal No. 385 of 1971 on the interpretation of section 13( I-A) and section 23(1) of the Hindu Marriage Act, 1955?

(3) Whether the cause of action in the present divorce proceedings, which was stated to be expiry of two years period after decision in the earlier Hindu Marriage Petition which was decided on 5-31968, can be said to be the same as the cause of action in the earlier case?

(4) Whether the Lower Appellate Court was right in reversing the judgment of trial Court specially in view of the fact that the husband is craving for a decree of divorce since last 20 years and admittedly, the marriage parties are living apart for a period of more than 20 years?"

2. The matter was heard for quite some time on 26-11-2007. No body appeared for respondent - Wife and therefore matter was adjourned to today.

Today again the learned Counsel representing respondent - Wife is not available. On last date Advocate V. V. Bhangde had pointed out that the appellant Husband is more than 75 years in age and his wife is also above 65 years and both have been staying separately since last about 40 years, he stated that after the matter was listed for final hearing he had contacted Advocate Shri M. N. Belekar who represents respondent - Wife and the said Advocate informed him that the respondent Wife had not contacted him for quite some time and he was taking steps to withdrew vakalatnama. However, till date the said Advocate has not filed any application or counsel note pointing out these developments to this Court.

3. Advocate Bhangde has pointed out the judgment dated 8-2-1977 delivered by this Court in Second Appeal No. 385/1977 and reported at 1977 Mh.L.J. 453, Shantabai Prabhakar Kothale vs. Prabhakar Atmaram Kothale, which holds that as the present appellant/husband did not respond to letter written by decree holder-respondent Wife and therefore avoided to abide by the decree for restitution of conjugal rights obtained by her was debarred from seeking decree of divorce in view of provisions of section 23(1)(a) of the Act. He contends that subsequent judgment of Hon'ble Apex Court in the matter reported in A1R 1977 SC 2218, Dharmendra Kumar vs. Usha Kumar was pointed out to the trial Court as also the Appellate Court and the trial Court has held that the judgment dated 8-2-1977 in Second Appeal No. 385/1977 was not relevant for adjudication as there was recurring cause of action in favour of the present appellant/husband. The Appellate Court in the impugned judgment in this appeal has not agreed with the said logic and has held that the judgment of Hon'ble Apex Court in the matter of Dharmendra Kumar (supra), do not alter the law and therefore the judgment in Second Appeal between the parties delivered on 8-21977 operates as res judicata.

4. The facts are being borrowed from the judgment reported in Shantabai Prabhakar

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