Adjudication under Section 9 and Section 13-A of Hindu Marriage Act, 1955 would not attract section 11 of the Code of Civil Procedure to create a Bar in filing of a subsequent suit under either of the provisions under Section 9 or 13-A of Hindu Marriage Act, 1955.

Sharad Kumar Sharma, J.

The core issue of debate in the present appeal from order, preferred by the husband is the adjudication made by the court below by the judgment dated 28.09.2015 in the Suit no. 77 of 2013, whereby while deciding issue no. 2, the Court has held that the Bar of Section 11 of the Code of Civil Procedure will not come into play, when the Bar is being sought to be attracted on the basis of the proceeding under Section 9 vis-a-vis proceeding under Section 13-A of the Hindu Marriage Act, 1955.

2. The appellant on 26.02.2013 had filed a petition under Section 13-A of Hindu Marriage Act, 1955, seeking dissolution of the marriage, which was said to have been solemnized between the plaintiff and the defendant on 15.06.1984. Although not relevant, but still it could be said that the grounds for dissolution of marriage as pleaded, was mental cruelty, mis-behaviour, physical assaults and the solemnization of second marriage with another female namely Paramjit Kaur. In the said suit the pleadings were exchanged. On the exchange of the pleadings, one of the issues which cropped up and was framed as to whether the suit in question would be barred by Section 11 of Code of Civil Procedure in view of the fact that the proceedings under Section 9 stood decided.

3. For the scrutiny of the aforesaid issue, reference to section 11 as contained in the Code of Civil Procedure is necessary and is quoted herein below for convenience:-

11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

4. The principle enunciated in Section 11 of Code of Civil Procedure provides that no Court should try any suit or "issue" in which the matter directly and substantially in issue has been directly and substantially decided in a formal suit. The stress would be on the term "issue" used under Section 9 of Hindu Marriage Act reads as under :

"9. Restitution of conjugal rights. - When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements, made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly."

5. On a simplicitor reading of Section 9 of the Hindu Marriage Act, 1955, it has altogether a different purpose. The purpose of section 9 of the Hindu Marriage Act, 1955 is to meet a contingency. It deals with a situation where a married couple for no justifiable reason is withdrawing himself from discharging the obligations attached to the institution of marriage, which at the hand of one of them is attempted to be settled together. The grant of relief of the restitution is subject to the satisfaction being established of non meeting of the matrimonial obligations.

6. To elucidate it further, the conjoint consideration of Section 9 read with Section 13-A is relevant.

7. Whereas Section 13-A of Hindu Marriage Act, 1955 deals with the alternative relief in divorce proceedings where the Court in the principal proceedings under Section 13 (1) and in its sub-clauses, alternatively feels instead of dissolving the marriage, to grant a decree of 'judicial separation' and, yet again is only an enabling provision to the Court to have an alternative recourse of judicial separation instead of dissolving the marriage under Section 13 for raising institution of marriage. It would be reasonable to infer that the invocation of Section 13-A is enabling the Court to have a situ