C A V Judgment

Per Radhakishan Agrawal, J.

1. Appellant / husband preferred this appeal under Section 19 (1) of the Family Courts Act, 1984 challenging the judgment and decree dated 28.02.2019 passed by the learned Additional Principal Judge, Family Court, Bilaspur, C.G. in Civil Suit No.15-A/2018, whereby the case of appellant / husband for grant of decree of divorce was dismissed.

2. Facts relevant for disposal of this appeal are that appellant / husband married the respondent / wife on 14.03.2007 according to the Hindu rites and rituals and from their wedlock, one male child was born. After marriage, the wife started quarreling and misbehaving with the husband and his parents. In the year 2009, the wife left the company of the husband and went to her matrimonial home. After several persuasion by the appellant / husband, she did not return as she never had any intention to start cohabiting with the husband. It is stated that the wife and her family members used filthy language and on several occasions tried to hurt and caused injury to him, as a result of which report was lodged by the appellant / husband on 03.04.2010 at police station Takhatpur, District Bilaspur, C.G. The wife also lodged a false report in relation to the alleged demand of dowry against the husband which was later on rejected. It is further stated that the appellant / husband was willing to join the company of the respondent / wife but during the conciliation, it was revealed that the wife was not willing to reside with the husband and this shows irretrievable breakdown of marriage between them. Earlier, the husband has filed a petition for divorce vide Civil Case No.116-A/2011 dated

21.03.2017 but the said petition was dismissed.

In the year 2014, husband came to know that his wife is living adulterous life with a person namely Mewaram Satnami and thereafter he lodged a report on 17.10.2014 at police station Hirri, Bilaspur and after desertion, since five years she is residing separately from the husband and leading a married life with the said Mewaram and, therefore, has stated that since the year 2009, there is no relation between them, the wife deserted, abused and misbehaved with him, therefore, it has become extremely difficult for him to live with her any longer and has filed a suit seeking divorce.

3. In reply, the respondent / wife has denied all the allegations levelled against her and has stated in para 3 that appellant is a Computer Operator in police station and he has approached the police officers and finished the case for demand of dowry against him. She has stated that earlier also the appellant had filed a case seeking divorce on 21.03.2017 which was rejected by the trial Court. She has also stated that she was not living in adultery and has denied the allegations levelled against her by the husband.

4. On the basis of the above averments made by the parties, the following issues were framed:-

i) Whether the respondent / wife was treating the appellant / husband with cruelty after marriage i.e.

14.06.2007?

ii) Whether the appellant / husband has deserted the respondent / wife continuously for a period of two years from 11.01.2018?

iii) Whether the present application is maintainable?

iv) Relief and cost?

After affording opportunity of hearing to the parties, the Family Court without any opinion on the issues framed has held that the second petition is barred by the principle of res judicata under Section 11 of the CPC and hence, dismissed the suit.

5. Learned counsel appearing for the appellant / husband submits that the impugned judgment of the trial Court dismissing the suit on the ground of it being hit by the principle of res judicata is per se illegal and contrary to the material available on record. Respondent / wife admitted in cross- examination that she is living separately from the husband for the last 7-8 years. Further, as per the evidence on record, it is also clear that the wife is leading an adulterous life but the Family Court did no