1980 Supreme(Raj) 185
RAJASTHAN HIGH COURT
G.M.Lodha, M.C.Jain, JJ.
Devi Singh - Appellant
Versus
Sushila Devi - Respondent
D.B.C.S.A. No. 8 of 1978.
Decided On : 18-01-1980
For the Appellant:Mr. M.L. Kala, Advocate.
For the Respondent:Mr. Govind Mal Mehta, Advocate.
The court clarified that Section 13-A of the Hindu Marriage Act, 1955, which provides for alternative relief of judicial separation in divorce proceedings, does not create a new ground for obtaining judicial separation. A petition for judicial separation must still be based on one of the grounds specified in Section 10 of the Act.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 13, 13-A - DIVORCE - JUDICIAL SEPARATION - ALTERNATIVE RELIEF - GROUNDS - RES JUDICATA - INTERPRETATION AND APPLICATION.
Fact of the Case:
Husband filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955, alleging desertion by the wife since 1964. The wife contested the petition, denying desertion and alleging cruelty and misbehavior by the husband. The trial court and the High Court dismissed the petition, finding that the wife had not deserted the husband without reasonable excuse and that the husband had not made bona fide efforts to facilitate her return.
Finding of the Court:
The court held that the husband was not entitled to a decree of divorce or judicial separation. It found that the wife had not deserted the husband without reasonable excuse, considering the husband's own conduct and behavior. The court also held that the principle of res judicata applied, as no new facts or circumstances had arisen since the dismissal of the husband's previous petitions for restitution of conjugal rights and judicial separation.
Issues: 1. Whether the wife had deserted the husband without reasonable excuse. 2. Whether the husband had made bona fide efforts to facilitate the wife's return. 3. Whether the principle of res judicata applied.
Ratio Decidendi: 1. Desertion requires the withdrawal of one spouse from the society of the other without reasonable excuse. In this case, the court found that the wife's separation from the husband was justified by his cruelty and misbehavior. 2. The court held that the husband had not made bona fide efforts to facilitate the wife's return, as evidenced by his own statement that he had no intention to keep her with him. 3. The court applied the principle of res judicata, as no new facts or circumstances had arisen since the dismissal of the husband's previous petitions for restitution of conjugal rights and judicial separation.
Final Decision: The court dismissed the husband's appeal, upholding the lower court's decision to deny him a decree of divorce or judicial separation.
"The appellant Devi Singh presented a petition under section 13 of the Act with the allegations that the parties to the petition were married in April, 1961 and a son was born out of the wedlock. According to the petitioner the non-petitioner-respondent deserted the petitioner for the last 14 years. The relations between the parties had become strained. Civil and criminal litigations had ensued. Thus, on the ground of desertion the petitioner sought a decree of divorce. The petition was resisted by the non-petitioner. It was averred that the non-petitioner had not withdrawn herself from the society of the petitioner without any reasonable excuse The petitioner had treated the non-petitioner with cruelty physical and otherwise and had misbehaved with her. The petition for restitution of conjugal rights and judicial separation were dismissed and there had been litigations with regard to the maintenance and custody of the child and further there had been Criminal litigation under sections 500, 323 Indian Penal Code , and 107 Criminal Procedure Code A plea was also raised that the petition is barred by principle of res judicata in view of the dismissal of the petitioner's applications for restitution of conjugal rights and for judicial separation on 29-9-68 and 9-5-1972.