The main legal point established in the judgment is that the wife did not desert the husband as she was driven to leave the house due to ill-treatment, and the appeal by the wife was allowed based on the application of the doctrine of Res Judicata and Order 9 Rule 9 of the Code of Civil Procedure.

Guttal, J.

This appeal by the wife, G. Sarala, is against the decree of divorce in favour of her husband K. Nalinakshan, made by the learned Additional Sub Judge, Trivandrum, in O.P. (HMA) No. 49/81. The learned judge upheld the respondent's case that the appellant deserted the respondent without any cause on 29-8-1974.. In this judgment, the appellant and respondent are referred to as Wife and Husband respectively or W and H for the sake of brevity.

2. The parties were married on 30-5-1958 according to Hindu rites and lived together at Pattern till 29-8-1974. There are three daughters born of this wed-lock, two of them since married while living with the wife. There is no dispute that the wife physically left the husband's house on 29-8-1974. What is disputed is the element of desertion, for, the wife urges that she was driven out by the husband after continued ill-treatment. Before considering whether the wife deserted the husband on 29-8-1974, a reference to certain previous proceedings between the H and W is necessary. The details of these proceedings are set out in paragraph No. 3 below.

3. In 1975, the H filed OP (HMA) No. 49 of 1975 (Ext. B1) for a decree of restitution of conjugal rights. The petition was dismissed after a contest. The findings of the court delivered on 31-3-1976, have become final, as no appeal was preferred against the dismissal of the petition. The conclusions arrived at by the Subordinate Judge, Trivandrum, were:-

(i) The husband's story about desertion by the wife on 28/29-8-1974 without any cause was rejected. The testimony of the daughter (C.P.W.2) who was then 14 years of age, and schooling was accepted.

(iii) on 29-8-1974 H beat and physically chased the W around, the H carrying stones in his hand. Therefore she left the house.

(iv) The W was driven to leave the Its house and live separately because the H treated her with cruelty.

The second proceeding between the parties was the wife's suit O.S. No. 60 of 1975 against the husband, for alimony. The Subordinate Judge, Trivandrum, on evaluation of the evidence of the H, W, their daughter, and neighbours held that the husband had treated the wife with such cruelty as t c a use reasonable apprehension in the wife's mind that it will be harmful and injurious to live with the husband and therefore she was justified in living separately and claim alimony. A decree for maintenance was made in favour of the daughters. The wife was not granted maintenance as she had separate income as a teacher. This decree was made on 31st March, 1976.

The third and the last litigation between the parties, was a petition for divorce filed by the H before 'the Subordinate Judge, Trivandrum. It was OP (HMA) No. 96 of 1978 (Ext. B3). In this petition, the husband made the following accusations against the wife:

(a) The wife deserted him on 29-8-1974 without any cause.

(b) The wife treated the husband with cruelty by making false allegations of adultery.

(c) The wife is "now living in adultery".

The O.P. (HMA) No. 96 of 1978, containing the above allegations was dismissed for default of appearance and was never restored.

4.On the arguments advanced before us and on the admitted facts set out in paragraph Nos. 2 and 3 above, the following questions arise for consideration:

(i) Do the findings in O.P. (HMA) 49/1975 and O.S.60/1975 that the H, treated the W with cruelty and on 29-8-1974, drove her out, preclude in the present proceedings, the trial of the issue of desertion by the W on 29-8-1974 on the doctrine of Resjudicata?

(ii) The OP (HMA) No. 96/1978 in which the Have red that the wife deserted him on 29-8-1974 was dismissed for default. Having regard to the provisions of Order 9 Rule 9 of the Code of Civil Procedure, is the O.P. (HMA) 49/81 out of which this M.F.A. arises, maintainable?

(iii) In view of the decision against 'the husband in the three previous cases, referred to in paragraph 3 above, is the institution and prosecution of the O.P. (HMA) No. 49 of 1981, an ab