The main legal point established in the judgment is that the ground of desertion was not available to the respondent, and the consideration of the ground of cruelty was allowed based on the differences in the allegations in both proceedings.

JUDGMENT :

L. Mohapatra, J. - This appeal is directed against the order dated 238.2007 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 595 of 2004 holding the aforesaid civil proceeding maintainable.

2. Appellant is the wife of the Respondent. The marriage took place on 9.3.1989 and a child was born to them in the year 1991. Thereafter, dissension arose and they started living separately. The child is now under the custody of the Respondent. The Appellant filed C.P. No. 308 of 2000 u/s 18 of the Hindu Adoption and Maintenance Act, 1956 claiming monthly maintenance from the Respondent as well as for a decree of separate residence. The Respondent similarly had filed C.P. No. 20 of 1997 u/s 13 of the Hindu Marriage Act, 1955 praying for a decree of divorce by dissolution of marriage on the ground of desertion and cruelty. The learned Judge, Family Court, Cuttack tagged both the cases and by a common judgment dated 11.7.2002 dismissed the Civil Proceeding No. 20 of 1997 for dissolution of marriage filed by the Respondent and so far as C.P. No. 308 of 2000 filed by the Appellant for maintenance and separate residence is concerned, the learned Judge, Family Court found the Respondent guilty of desertion and directed for payment of monthly maintenance of Rs. 500/- and the liberty to the Appellant to live separately. After such decree was passed and the parties were living separately, the Respondent again filed C.P. No. 595 of 2004 on 15th September, 2004 in the court of the learned Judge, Family Court, Cuttack for dissolution of marriage on the very same ground of desertion and cruelty. The Appellant after appearing in the said case filed a petition under Order 14, Rule 2. CPC to decide the question of maintainability as a preliminary issue on the ground that the earlier proceeding filed by the Respondent vide C.P. No. 20 of 1997 the question of desertion and cruelty had been decided and the Appellant having been given liberty to live separately, the question of desertion does not arise. So far as the ground of cruelty is concerned, the very same allegations having been repeated in the subsequent proceeding, the same is not maintainable. The learned Judge, Family Court in the impugned order found, the proceeding to be maintainable and the said order is subject matter of challenge in this appeal.

3. Shri B.K. Nanda, the learned Counsel appearing for the Appellant submitted that in the earlier C.P. No. 20 of 1997 a prayer for dissolution of marriage was made on the ground of desertion and cruelty. The statutory period of desertion having not been expired, the proceeding as such was not maintainable. However, the learned Judge, Family Court not only decided the question of desertion but also the question of cruelty and found the Appellant is not guilty of the alleged cruelty. In the subsequent proceeding the very same prayer was made for dissolution of marriage on very same ground which had earlier been taken in C.P. No. 20 of 1997. Therefore, the trial court should have dismissed the subsequent proceeding as not maintainable.

The learned Counsel for the Respondent submitted that so far as desertion is concerned, admittedly the earlier proceeding had been instituted prior to expiry of the statutory period and, therefore, the learned Judge, Family Court was justified in holding that the proceeding is not maintainable on the ground of desertion. However, the subsequent proceeding having been initiated in 2004 much after the parties started living separately, the question of desertion could be decided. Apart from the above, the grounds of cruelty were not the same in both the proceedings and, therefore, on that count also the proceeding was maintainable.

4. Admittedly, the parties got married on 9.3.1988 and a son was born in the year 1991. They lived together for sometime and thereafter got separated. In 1997 the Respondent filed C.P. No. 20 of 1997 for dissolution of marriage whereas the Appellant filed C.P. No. 308