IMPORTANT POINT
The principle of res judicata does not apply when a subsequent matrimonial case is based on a new cause of action, allowing for the appeal to be upheld.

JUDGMENT :

(Per : Om Prakash Shukla, J.)

(1) Heard Shri Mohd. Yasin, learned Counsel representing the appellant-husband and Shri Rakesh Kumar, learned Counsel representing the respondent-wife.

(2) This appeal under Section 19 (1) of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 has been filed by the appellant against the judgment and decree dated 07.04.2023 passed by the Principal Judge, Family Court, Ambedkar Nagar in Matrimonial Case No. 287 of 2021 : Dinesh Vs. Malti Devi, whereby the learned Family Court has dismissed the matrimonial case filed by the appellant for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 on the ground of being barred by the principle of res judicata.

(3) The factual matrix of the case, along with the record of multiple legal proceedings between the parties, is summarised as under :-

A) The appellant is the husband and the respondent is the wife. Their marriage was solemnized on 07.06.1993 in accordance with Hindu Rites and Customs. But it appears that there were problems from the very inception for which appellant blames not only the respondent but her family members too.

B) It is on 26.04.2005 that the appellant filed a Matrimonial Case No. 93 of 2005 : Dinesh Vs. Malti Devi, under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘First Matrimonial Case’) for dissolution of marriage against the respondent mainly on the ground of desertion. This matrimonial case was, however, dismissed by the Family Court, Ambedkar Nagar vide order dated 28.02.2013 predicated on a reasoning that desertion on the part of the respondent was not proved by the appellant.

C) Feeling aggrieved by the said judgment and decree dated 28.02.2013, the husband/appellant preferred First Appeal No. 42 of 2013 : Dinesh Vs. Smt. Malti Devi before this Court. A learned Single Judge of this Court, after appraising the judgment and decree dated 28.02.2013 and the evidence on record, returned a finding that though the suit filed by the appellant itself was not maintainable as per the averment made therein inasmuch as the appellant himself has averred in the said suit that the respondent/ wife had refused to live with the appellant on 25.04.2005 and admittedly the said suit was presented on 26.04.2005, meaning thereby that the suit was presented within two years, which is not as per the provision of Section 13 of the Hindu Marriage Act, 1955, although the Family Court had not dismissed the suit on the aforesaid ground but on another ground that desertion on the part of the respondent was not proved by the appellant, the learned Single Judge of this Court dismissed the aforesaid first appeal vide judgment and order dated 11.10.2017 on the said ground of non-maintainability of the suit.

D) The appellant, almost after two and half years from the date of the aforesaid judgment and order dated 11.10.2017, again filed a Matrimonial Case No. 287 of 2021 for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Second Matrimonial Case’). The appellant, besides levelling almost identical allegations as were made in the earlier case, also alleged in this case that the wife/respondent had filed a case under Section 12 of the Domestic Violence Act, in which Judicial Magistrate, vide order dated 13.06.2012, gave a slew of directions, including payment of lump sum amount of Rs.20,000/- as litigation cost, Rs.2000/- per month towards maintenance and a right to be provided accommodation in favour of the respondent-wife. According to the appellant, he had complied with the aforesaid order dated 13.06.2012 and in compliance therewith had also provided to the respondent a room in his house, wherein, while living in the said room, cruelty has been inflicted by the respondent on 04.09.2020, at about 12:00 noon. It was stated by the appellant that on the said fateful day and time, when mother of the appellant was alone, the respondent and