The court established that separate grounds for divorce can be pursued without being barred by res judicata if they present new or changed circumstances.

J U D G M E N T

Dated this the 18th day of March, 2021 Dr.Kauser Edappagath, J.

This appeal has been preferred by the wife in a matrimonial dispute challenging the decree of divorce granted by the Family Court on the ground of desertion.

2. The parties are referred to as shown in the original petition unless otherwise stated. The petitioner is the husband and the respondent is the wife. The petitioner and the respondent got married on 13/9/2003. In the year 2009, the petitioner filed OP No.1052/2009 for divorce on the ground of cruelty and desertion. The said OP was dismissed on 20/8/2010. Thereafter, the petitioner has preferred the present OP after a lapse of three years. The allegation set out in the original petition is that on the next day of the marriage itself, she went to her house and refused to come back, but, due to the intervention of her father, she came back after four days and left again soon thereafter. Thereafter, on 7/1/2004, the respondent left the matrimonial home and never came back. According to the petitioner, the respondent deserted him on 7/1/2004 with an intention to abandon him for ever. The petitioner further alleged that the respondent was exercising mental as well as physical cruelty on him. It is further alleged that the marital life of the petitioner with the respondent had never been cordial due to the hostile attitude of the respondent. It is the further case of the petitioner that the father of the respondent filed frivolous complaint to SNDP with allegation that mother of the petitioner was compelling her daughter to do immoral activities. It is also alleged that the respondent filed a private complaint before the Magistrate Court, Erattupetta with the false allegation that she was assaulted by the police and after investigation, police filed refer report stating that the allegations were false. In short, the case set up by the petitioner is that he has suffered much mental cruelty due to the above conduct of the respondent and that she has deserted him w.e.f. 7/1/2004. It was in this circumstances, OP was instituted for divorce on the ground of cruelty and desertion.

3. The respondent appeared and filed counter statement.

It is contended that the original petition is barred by the principles of res judicata. The allegation of cruelty and desertion had been emphatically denied. It is further contended that the mother of the petitioner compelled her to lead an immoral life and it amounts to cruelty. According to her, she never treated the petitioner with cruelty on any occasion, nor did she desert him. It is asserted that she is prepared to ready to live with the petitioner. The respondent sought for the dismissal of the petition.

4. The parties went on trial. The petitioner was examined as PW1. Two witnesses were examined on the side of the petitioner as PW2 and PW3. Exts.A1 to A7 were marked. The respondent was examined as DW1 and Exts.B1 to B4 were marked. After trial, the Court below found that the petitioner is entitled to get a decree for divorce on the ground of desertion and accordingly such a decree was granted as per the impugned judgment. The said judgment is under challenge in the present appeal.

5. Heard both sides.

6. As already stated, in 2009, the petitioner filed OP for divorce as OP No.1052/2009 on the ground of cruelty and desertion which was dismissed. The respondent vehemently contended that the judgment in the said original petition operates as res judicata. The Court below found that there are no new or changed facts or circumstances canvassed by the petitioner so far as the ground of cruelty is concerned in the present Original petition and hence, the prayer for divorce on the ground of cruelty is barred by res judicata. The said finding has become final since there is no challenge against it. So far as the ground of divorce on the ground of desertion is concerned, the Court below found that the ground for desertion canvassed in this original petition is totally different f