Withdrawal of a prior suit without adjudication does not invoke res judicata, necessitating a new assessment of the divorce petition on its merits.

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This appeal under Section 19 of the Family Courts Act is filed against the judgment and order dated 01.06.2024 passed by the Judge, Family Court No.7, Ahmedabad in Family Suit No.2273 of 2022.

2. The facts in brief are that the appellant got married with the respondent as per the Hindu rites and customs on 12.06.2006 at Ahmedabad and whereby since the appellant and the respondent were living together and enjoying their marital life. The said marriage was registered before the Registrar of Marriages on 05.04.2013 at Juna Vadaj, Ahmedabad. Out of the said wedlock , the respondent gave birth to a child, named Nyasha.

2.1 The respondent started living separately from his parents by purchasing a flat by obtaining a loan and is regularly paying the loan installments. Even then on pity quarrel, the respondent left the residence of the appellant for which the appellant in the year 2017 had filed a petition of restitution of conjugal rights u/s 9 of the Hindu Marriage Act and whereby the settlement was arrived between the parties and the respondent started to live with the appellant.

2.2 Again the respondent left the appellant’s house and filed maintenance application against the appellant u/s 125 of Code of Criminal Procedure being Misc. Crim. Application No. 2064 of 2018. The respondent has also filed criminal complaint under domestic violence act against the present appellant being Misc.

Crim. Application No. 2753 of 2018.

2.3 The respondent has deserted the appellant and filed several criminal complaints against him therefore the appellant had filed divorce petition u/s 13(1) of the Hindu Marriage Act being HMP No.35 of 2018 before the Family court Ahmedabad whereby the appellant advocate has filed a pursis at Exh. 24 for the withdraw of the suit.

2.4 The appellant had again filed the Family Suit No.2273 of 2022 before the Family Court, Ahmedabad for dissolution of Marriage u/s 13(1) of the Hindu Marriage Act , whereby the Family Court rejected the suit of the appellant.

3. Learned Advocate for the appellant submitted that the Family Court has materially erred in rejecting the suit of the appellant on the ground of the principles of Res-Judicata. As such, the earlier suit was not adjudicated on merits.

3.1 It is submitted that the technical drawback should not restrain the litigants from asserting their rights and getting the dispute adjudicated by appropriate judicial proceeding and that no- one can be non suited purely on technical ground. It is submitted that earlier the suit was filed for dissolution of marriage by the appellant, however, at the very initial stage of proceedings the suit was withdrawn on misleading statements/advise of the appellant advocate that the suit is barred u/s 2(2) of the Hindu Marriage Act .

3.2 It is submitted that the Family Court has erred in not appreciating the fact that both the parties have married as per the Hindu rites and Customs and the same marriage is also registered and therefore, though both parties belong to scheduled tribe, even then the provisions of Section 2 (2) of the Hindu Marriage Act is not applicable to present case.

3.3 It is submitted that the fact that earlier the appellant husband has filed the conjugal petition u/s 9 of Hindu Marriage Act before the Family Court at Ahmedabad whereby no objection was made at that time by the other side and settlement was made between the parties.

4. Learned Advocate for the respondent-wife submitted that the judgment of the Family Court is justified as admittedly, both the parties belong to scheduled tribe and therefore, the provisions of the Hindu