The principle of res judicata may apply in certain cases under the Hindu Marriage Act, but it is not an absolute bar. The court must consider the facts and circumstances of each case.

This appeal has been filed under Section 28 of the Hindu Marriage Act against the judgment of the learned Additional District Judge, Cachar at Silchar dated 13-11-95 passed in Title Suit No. 86 of 1992. By the impugned judgment the learned Judge held that this suit is barred by the principle of res judicata and accordingly dismissed the suit holding to be barred under Section 11 of C.P.C. Section 21 of the Hindu Marriage Act reads as follows :

"21. Application of Act 5 of 1908.- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."

2. The principle of res judicata may apply in certain cases also in a matter under Hindu Marriage Act. There is an authority for this proposition of law in AIR 1981 SC 1143, Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry where the Supreme Court pointed out as follows (at page 1145) :

"In terms Section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into S. 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law. (See Canadian and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd., (1947) AC 46 at p. 56 (PC)."

On this point there is also a decision in AIR 1991 Ker 362, C. Sarala v. K. Nalinakshan. In paragraph 8 the Kerala High Court pointed out that the principle of Res judicata applies to a proceeding under the Hindu Marriage Act, but that is not the end of the matter. The learned Judge failed to consider the plaint of the present suit. The earlier suit was under Sections 9, 13 and 13-A of the Hindu Marriage Act. Earlier suit was dismissed on 21-4-88 holding that the plea for decree of divorce for desertion under Section 13(i)(b) of the Hindu Marriage Act is premature and does not appear to be tenable in law as the plea of alleged desertion was not two years immediately proceeding the presentation of the petition. On that ground, the plea of divorce was not considered in the earlier suit and nothing was decided on merit and this suit has been filed in the year 1992 i.e. in September, 1992 and definitely by this time the period of two years have been completed. Whether there was desertion or not that plea have to be decided by the Court on the basis of evidence, but that was not done. The learned Judge had simply said that no new cause of action has arisen. That is not the correct approach in dismissing the suit. Further, the learned Judge in deciding the question of cruelty must also bear in mind certain things which have now taken concrete shape. They are (i) Marriage without sex is an anathema (ii) The fundamental feature of marriage is sex. (iii) if the wife deliberately withdrawn from the husband and deprives the husband of sex for long time, it is mental cruelty. Whether there was deliberate withdrawal by wife or not that will have to be decided by the trial