Gauhati High Court
Basudeb Nath vs Smt. Diptikona Nath on 9 September, 1997
Equivalent citations: AIR1998GAU107, AIR 1998 GAUHATI 107, (1997) 3 GAU LR 357, (1999) 1 MARRILJ 185, (2000) 1 CIVLJ 735, (1998) 2 CURCC 384
JUDGMENT J.N. Sharma, J.
1. This appeal has been filed under Section 28 of the Hindu Marriage Act against the judgment of the learned Additional District Judge, Cachar at Silchar dated 13-11 -95 passed in Title Suit No. 86 of 1992. By the impugned judgment the learned Judge held that this suit is barred by the principle of res judicata and accordingly dismissed the suit holding to be barred under Section 11 of C.P.C. Section 21 of the Hindu Marriage Act reads as follows :
"21. Application of Act 5 of 1908.-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."
2. The principle of res judicata may apply in certain cases also in a matter under Hindu Marriage Act. There is an authority for this proposition of law in AIR 1981 SC 1143, Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry where the Supreme Court pointed out as follows (at page 1145):
"In terms Section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into Section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law. (See Canadian and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd., (1947) AC 46 at p. 56 (PC)."
On this point there is also a decision in AIR 1991 Ker 362, C. Sarala v. K. Nalinakshan. In paragraph 8 the Kerala High Court pointed out that the principle of Res judicata applies to a proceeding under the Hindu Marriage Act, but that is not the end of the matter. The learned Judge failed to consider the plaint of the present suit. The earlier suit was under Sections 9, 13 and 13A of the Hindu Marriage Act. Earlier suit was dismissed on 21-4-88 holding that the plea for decree of divorce for desertion under Section 13(i)(b) of the Hindu Marriage Act is premature and does not appear to be tenable in law as the plea of alleged desertion was not two years immediately proceeding the presentation of the petition. On that ground, the plea of divorce was not considered in the earlier suit and nothing was decided on merit and this suit has been filed in the year 1992 i.e. in September, 1992 and definitely by this time the period of two years have been completed. Whether there was desertion or not that plea' have to be decided by the Court on the basis of evidence, but that was not done. The learned Judge had simply said that no new cause of action has arisen. That is not the correct approach in dismissing the suit. Further, the learned Judge in deciding the question of cruelty must also bear in mind certain things which have now taken concrete shape. They are (i) Marriage without sex is an anathema (ii) The fundamental feature of marriage is sex. (iii) if the wife deliberately withdrawn from the husband and deprives the husband of sex for long time, it is mental cruelty. Whether there was deliberate withdrawal by wife or not that will have to be decided by the trial Court on the basis of evidence on record. The next thing which must be borne in mind is that irretrievable breakdown of marraige now has become the determining factor it seems impracticable marital problems in some cases are emphasised to adopt irretrievable breakdown of marriage as a good ground in India among Hindus. In this connection the trial Court may have a look at the law as laid down by the Apex Court in a recent decision reported in (1997) 4 SCC 226 : (AIR 1997 SC 1266), Ashok Hurra v. Rupabipin Zaveri where the Apex Court in paragraph 22 has pointed out as follows (at page 1273 of AIR):
"We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for namesake and that no love is lost between the parties, who have been fighting like "Kilkenny cats" and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13B of the Act and dissolve the marriage between the parties, in order to meet his ends of justice."
That aspect of the matter also may be borne in mind by the trial Court so that there may be a decree of divorce by mutual consent under Section 13(b) of the Hindu Marriage Act. The wife refused to live with the husband as reflected in the order dated 28-8-97 in the appeal.
3. The next case is AIR 1984 SC 1562, Smt. Saroj Rani v. Sudarshan Kumar Chadha where in paragraph 15 the law has been laid down as follows :
"In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. See in this connection Mulla's Hindu Law -- 15th Edn. P. 567--Para 443.
There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission-71st Report on the Hindu Marriage Act, 1955-- "Irretrievable Breakdown of Marriage as a Ground of Dirvorce. Para 6.5 where it is stated thus--
"Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing, ft is indicative of a disruption of the essence of marriage-- "breakdown"-- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage--" irretrievable breakdown."
4. Bearing all these things in mind, the trial Court shall dospose of the suit within a period of six (6) months from the date of receipt of the record. The parties shall appear before the trial Court on 3rd November, 1997 to receive further instruction. The impugned judgment is quashed and the matter is remitted back.