( 1 ) THE present application under section 151 of the Code of Civil Procedure is moved by the petitioner, who has filed a petition for disgolution of marriage by a decree of divorce against his wife, on grounds of adultery, cruelty and desertion,

( 2 ) IN so far as this application is concerned; the petitioner contends himself to be entitled to a decree of divorce on the basis of some averments made by the respondent in the written statement. The plea is that in a number of paragraphs of the written statement, which he has pin-pointed in paragraph 169 of the amended petition to be paragaphs 4, 4c, 4e, 5, 12, 14. 20, 28-29, 32, 33-34. 36, 378, 38, 43,48, 58, 73, 80, 100, 138, 143 and 145, the respondent has imputed lunacy and insanity to him and since he is a practising lawyer in the Supreme Court, all these allegations per se constitute cruelty of a very grave nature, as these were baseless and grotesque in nature. He contends that the allegations expose the respondent as to what type of pers6n she is, and also are indicative of the fact that she has no intention of living with the petitioner, and thus besides being tantamount to cruelty entitling the petitioner to a decree of divorce, these also constitute evidence of desertion on her part, and accordingly the petition be allowed, without requiring the parties to go to evidence.

( 3 ) THIS application, after the case was received in this Court, shortly before the Vacation, has been heard almost day to day and at length. The petitioner argued personally and in addition, he had Shri Anil Dewan; Senior Advocate appear for him, to address arguments in rejoinder. Mr. Bawa Shiv Charan Singh appeared for the respondent.

( 4 ) IT is to be noted, however, that after the written statement was filed in January 1986, soon thereafter the petitioner moved an application similar to as the present one, being 1. A. 3007/87, which application was dismissed after detailed consideration of the arguments advanced, and the facts pleaded, by order dated 24th May, 1988. The learned Judge, who was seized of this matter at the time, opined that apart from the fact that a party cannot be allowed a decree merely on the basis of what was stated in the written statement, when the basis for the prayer did not form any part to the petition; otherwise also.

"even if it be assumed that the court can go in to the question of cruelty on the allegations pleaded in the written statement, the court has also to see what was the effect of those allegations on the petitioner. "

( 5 ) THE implication is obvious to the effect that the learned Judge was of clear opinion that the parties have to go to evidence and the petitioner who complains to be hurt or harmed by something stated in the written statement has to prove so by evidence and such a relief could not be considered on bare averments in the written statement. I was informed during hearing that the petitioner filed a special leave petition against this order, but subsequently withdrew the same with the result that the said order is final between the parties. I am of my firm view that this order would operate as res judicata between the parties because it is well established that even orders in interlocutory matters during pendency of certain proceedings can be res judicata between the parties. (Reference : AIR 1977 S. C. 392. Y. B. Patil and others v. V. L. Patil ).

( 6 ) ON this ground alone the present application was not entertainable but since by the time this matter came to me, reply to the application had been filed, and the respondent had not taken any plea of res judicata, and there was order of Hon ble Supreme Court for bearing and decision of this application I propose to dispose of the same on merits in the light of submissions addressed.

( 7 ) TO my mind, the question requires determination on first principles as to whether petitioner in a petition under the Hindu Marriage Act, filed on the allegation of adultery, desertion and cru