Smt. Palo, J.--1. This appeal has been filed by the appellant-wife under section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 27.10.2014 passed by First Additional District Judge, District Burhanpur in HMA No. 30/2011 whereby a decree of dissolution of marriage between the parties under section 13 of the Hindu Marriage Act, 1955 has been passed.

2. It is not in dispute that the appellant and respondent are husband and wife. Their marriage was solemnized on 25.11.2003 according to Hindu religion and rites. They have a daughter aged about 7 years who is residing with the appellant.

3. The divorce petition has been filed by the respondent husband against the appellant-wife on the grounds that from beginning of marriage the appellant-wife insulting him and used to quarrel without any reason. She used to go frequently to her parent's house and stayed there. When the respondent-husband objected the appellant-wife, she used to pressurize him to leave his family and to live at her maternal house. The respondent-husband is the only son of his parents. He has been mentally harassed by his wife. The wife deserted her husband and is residing separately for more than last two years with her parents without any sufficient reason. Hence, the respondent-husband has filed petition under section 13(1)(ia) of the Hindu Marriage Act, 1955 for divorce.

4. Appellant-wife filed a written objection and pleaded that the respondent has never kept her happy and used to beat her. The respondent went to Indore for doing service. He has not kept the appellant with him and the appellant-wife used to live with his parents at Nepanagar. The respondent-husband threatened to give her divorce. On 18.3.2009 the respondent-husband has beaten and ousted her from his house. Matter was reported by the appellant-wife to Pariwar Paramarsh Kendra. The appellant has also filed a complaint before JMFC, Sanawad under Domestic Violence Act on 21.1.2013. An order for maintenance was passed in favour of the appellant. Thereafter, respondent has filed petition under section 9 of the Hindu Marriage Act before the First Additional District Judge, Burhanpur which has been dismissed on 1.3.2011.

5. It was held by the trial Court that the respondent-husband was ill-treated and deserted by the appellant. The trial Court allowed the application under section 13 of the Hindu Marriage Act and declared that the marriage solemnized between the parties on 25.1.2003 has been dissolved from 27.10.2014.

6. The appellant-wife challenged the aforesaid findings on the grounds that the trial Court has lost the sight that after the dismissal of petition under section 9 of the Hindu Marriage Act bearing No. 35/2009, the subsequent petition has been filed under section 13(1)(ia) of the Hindu Marriage Act on the same facts and grounds as in the former petition under section 9 of the Hindu Marriage Act, which involved directly and substantially same issues between the same parties, hence, it is barred by res-judicata. The trial Court has not considered the facts and circumstances involved in the case. The trial Court wrongly passed the impugned judgment and decree in favour of the respondent-husband which is liable to be set aside.

7. We have heard learned counsel for the appellant and perused the record.

8. It is not in dispute that the appellant-wife is residing separately from her husband since 19th March, 2009.

9. Earlier, a petition for restitution of conjugal rights was filed by the respondent against the appellant, which was dismissed by the Ist Additional Judge, Burhanpur. It was held that the respondent claimed for financial aid from the parents of the appellant for separate residence at Indore. He failed to establish the allegation against the appellant that she harassed him with her cruel behavior. It was also found in earlier petition that the respondent harassed the appellant, hence, she was residing separately. After failure in above proceedings, the respo