Allowed a writ petition seeking quashing of an order dismissing an application under Section 11 CPC. The High Court held that res judicata does not apply because the earlier suit only addressed restitution of conjugal rights, whereas the current suit addresses cruelty and desertion.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27th DAY OF FEBRUARY, 2020
BEFORE
THE HON’BLE MR.JUSTICE S.G. PANDIT
WRIT PETITION NO.112665/2019 (GM-CPC)
BETWEEN:
SMT. SINDHU W/O MAHANTESH DHAM AGE:34 YEARS, OCC:HOUSEHOLD, R/O SINDIGI COMPOUND, NEAR RAGHAVENDRA THEATER, BALLARI, DIST:BALLARI-583212.
….PETITIONER
(BY SRI. SIDDAPPA S SAJJAN, ADV.)
AND:
SRI. MAHANTESH DHAM S/O BABU DHAM AGE:38 YEARS, OCC:PRIVATE TEACHER, R/O GULEDAGUDDA VILLAGE, TQ:BADAMI, DIST:BAGALKOTE-587203. NOW AT DODDABALLAPUR, TQ:DODDABALLAPUR, DIST:RURAL BENGALURU.
…RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ON IA NO.4 DATED 26.6.2019 IN MC NO.19/2019 PASSED BY THE COURT OF PRINCIPLE JUDGE, FAMILY COURT AT BALLARI VIDE ANNEXURE-G AND DISMISS THE PETITION VIDE ANEXURE-D, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner is before this Court under Articles 226 and 227 of the Constitution of India assailing the order dated 26.6.2019 on IA No.4 in MC No.19/2019 on the file of the Principal Judge, Family Court, Ballari, by which the application filed by the petitioner under Section 11 of CPC is rejected.
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after trial was dismissed. Hence, the present petition in
MC No.19/2019 seeking for divorce would not be maintainable as the same would be hit by Section 11 of CPC. The said application was opposed by the husband by filing objections. The trial Court under the impugned order rejected the IA No.4 filed under Section 11 of CPC. Hence, the petitioner-wife is before this Court in this writ petition.
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petitioner and on perusal of the writ petition papers, I am of the view that the trial Court has rightly rejected the IA No.4 filed by the wife under Section 11 of CPC. The husband had filed MC No.21/2016 under Section 9 of the Act for restitution of conjugal rights and failure to grant restitution of conjugal rights, he had prayed for dissolution of marriage solemnized on 16.5.2010. The trial Court after detailed trial under the judgment dated 18.9.2017 dismissed the petition filed by the husband. The order of dismissal reads as under:
The petition filed by the petitioner under Section 9 of the Hindu Marriage Act, is hereby allowed.
The respondent is directed to join the society of the petitioner to lead marital life within three months after he making separate residence for her and her child and live with them.
The prayer of the petitioner for decree of divorce is hereby rejected.
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The parties are directed to bear their own costs.
Draw decree accordingly.
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heard and finally decided by the trial Court in the earlier proceedings. Section 11 of CPC, principles of res-judicata would not be applicable in the facts and circumstances of the case. Thus, I find no reason to interfere with the order passed by the trial Court. The petition is devoid of merits and the same is dismissed.
Sd/JUDGE
JTR
2 issues framed by the court
Whether the principle of res judicata under Section 11 of the Code of Civil Procedure applies to bar a divorce petition when the earlier suit involved only restitution of conjugal rights.
Whether issues of cruelty and desertion in the present divorce petition were identical to and finally decided in the earlier suit for restitution of conjugal rights.
4 provisions across 3 enactments
Smt. Sindhru W/o Mahantesh Dham
Sri. Mahantesh Dham S/o Babu Dham
S.G. Pandit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
