The principle of res judicata does not apply to newer legal grounds and changed circumstances in divorce cases.

1. The are two cross revisions before the Court directed against the same order which was passed during the hearing of a petition under S.13 of the Hindu Marriage Act, 1955 , instituted by Shri Parkash Chand Gupta against his wife Shrimati Kamla Gupta praying for divorce under S.13 of the said Act.

2. This is not the first case between the parties; in fact it is the third case, and hence an issue was raised to the effect that the petition was barred on principles of res judicata which was tried as a preliminary issue. The petition being based on the grounds of cruelty and desertion was held by Shri G.R. Luthra, Additional District Judge. Delhi to be barred by res judicata but not so barred on the ground of cruelty. This has led to both the parties coming before this Court for revision of the order. It is the case of the husband (Petitioner in the court below and petitioner in C.R. No. 533 of 1977) that neither of the grounds is barred by res judicata and it is the case of the wife (respondent in the case below and petitioner in C.R. No. 718 of 1977) that both the grounds are barred by res judicata.

3. As it is necessary to give the facts in order to decide this claim, it is first necessary to refer to the previous proceedings. In the year 1965 the husband filed a petition for judicial separation under S.10 of the Hindu Marriage Act, 1955 , on the ground of cruelty, but the same was dismissed by Shri S.C. jain, Subordinate Judge, Delhi, on 25th March, 1968. The judgement became final. That was the first of the three proceedings.

4. Next, the husband, filed a petition for divorce on the grounds of adultery, but the same was dismissed by Shri Jagdish Chandra, Additional District Judge on 16th May, 1975. The husband appealed to the High Court which came before B.C. Misra J. for hearing. An application was moved for withdrawal of the petition with leave to file a fresh petition. This leave was granted by an order passed on 16th Dec. 1976, subject to payment of Rs. 500/- as costs. The result of that order would be that the petition based on the grounds of adultery was withdrawn with leave to move a fresh petition. This was the second case in between the parties.

5. When the third case, i.e., the present case was instituted, the plea raised by the wife was that the ground of cruelty was barred by res judicata because of the judgement of Shri S.C. Jain, Subordinate Judge, recorded in the earlier case under S.10 of the Act. As regards the ground of desertion, the case of the wife was that this ground had not been raised in either of the earlier two cases, and hence, on the principle of constructive res judicata this ground could not now be agitated.

6. It is now necessary to mention how the Additional District Judge has dealt with the question in issue. As far as the ground of cruelty is concerned, he has held that the Hindu Marriage Act, has been amended in 1976. The ground of cruelty is now different and has become a ground of divorce. Therefore, it has been held that S.11 of the Civil P.C. does not apply. On the question of desertion, it has been held that according to the pleadings desertion took place in May, 1963 and hence even when the earlier petition for divorce was filed this could have been a ground. Hence, it has been held that this ground is barred by constructive res judicata.

7. I have heard learned counsel for both parties and have considered the question carefully. The question of res judicata has to be decided in this case keeping in view the fact that the Hindu Marriage Act, 1955 has been drastically amended by Act 68 of 1976. The grounds of divorce appearing in the Act as originally passed did not incl