Main Search Premium Members Advanced Search Disclaimer
Cites 3 docs
Section 13 in The Hindu Marriage Act, 1955
Section 9 in The Hindu Marriage Act, 1955
Section 3 in The Hindu Marriage Act, 1955

User Queries
Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Punjab-Haryana High Court
Shashi Kumar Khanna vs Romila on 10 March, 2000
Equivalent citations: II (2001) DMC 612
Author: K Srivastava
Bench: K Srivastava

JUDGMENT K.K. Srivastava, J.

1. This is an appeal filed by the appellant-husband against the judgment dated 3.3.1994 passed by Shri J.S. Sidhu, the then District Judge, Chandigarh dismissing the petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (for short to be referred as the "Act 1955").

2. Appellant Shashi Kumar Khanna was married with respondent Romila on 2.10.1976 according to Hindu rites. The marriage was solemnised at Jalandhar. The marriage was duly consummated and the parties cohabited for a period of 22 days on the first occasion, and from the period from 5.8.1987 to 22.11.1987 on the second occasion. The parties did not have a child born out of this marriage. It appears that the relations between the couple were not smooth and the wife was accused of treating the appellant-husband with cruelty right from the start of their marriage. The appellant alleged that the respondent showed no respect to him and for his relations. She openly said that the appellant was not to her liking. The wife Romila respondent left the matrimonial house on 22.4.1976. Despite genuine efforts made by the appellant to bring the respondent-wife back to the matrimonial house, the wife did not return to the matrimonial house and this led to the filing of a petition for divorce by the appellant which was registered as Case No. 59 of 22.3.1979. The said petition for divorce filed under Section 13 of the Act 1955 was dismissed by the then District Judge, Jalandhar on 16.4.1980. The appellant-husband thereafter filed a petition under Section 9 of the Act 1955 which was dismissed by the Sub Judge 1st Class, Jalandhar vide judgment dated 16.7.1986. An appeal was filed against the judgment of the Sub Judge 1st Class, Jalandhar which was dismissed by this Court on 9.11.1987 as having been rendered infructuous. Still further, the appellant filed another petition for divorce on the ground of cruelty under Section 13 of the Act 1955 before the District Judge, Jalandhar which was transferred from Jalandhar to Chandigarh and was eventually dismissed as withdrawn by the then District Judge, Chandigarh. After the three aforesaid unsuccessful attempts made by the husband, he filed the petition for divorce again being 4th in sequence under Section 3 of the Act, on the ground of cruelty and desertion. The wife appeared to contest the petition under Section 13 of the Act and filed her written statement. She alleged that the husband was abusing the process of law by filing repeated petitions against her. She took the plea that the petition which was 4th in sequence was barred by the principles of res judicata as well as barred by the provisions of Order 23 of Civil Procedure Code because the earlier petition had been dismissed as withdrawn on 16.4.1980 without seeking permission to file a fresh petition. She denied the allegations made against her of treating the husband with cruelty and deserting him and contended that on the other hand, it was the husband-appellant who had no intention to keep her as his wife and was bent upon getting rid-of the respondent-wife on trumped up grounds. She further alleged that she lived with her husband i.e. the appellant from 5.8.1987 to 9.11.1987. According to her, the husband-appellant put forward a condition before this Court on 9.11.1987 that the respondent-wife should resign her job as a teacher, which was also accepted by her, but despite that the husband did net keep her as his wife at the matrimonial house. In the replication filed by the husband the averments made against him in the written statement were denied and the averments made in the petition filed under Section 13 of the Act 1955 were reiterated.

3. The learned Trial Judge framed the following issues for determination of the controversy between the parties :

  (1) Whether this petition is barred by res judicata ?                      OPR
(2) Whether the petition is precluded from 
    instituting this petition by the
    provisions of Order 23 Rule 1(4), C.P.C. ?                             OPR
(3) Whether the respondent has treated the petitioner 
    with cruelty after solemnization of their
    marriage ?                                                             OPR
(4) Whether the respondent has deserted the petitioner 
    continuously for the statutory period of two years
    or more immediately preceding the
    filing of this petition ?                                              OPR
(5) Relief. 
 

4. The husband and the wife both examined themselves as witnesses in support of their respective pleadings. They did not examine any other witness. After hearing the arguments of both the sides, learned District Judge, Chandigarh decided Issue No. 1 against the appellant. Issue No. 2 was also decided against the appellant-husband, and Issue Nos. 3 and 4 were decided in favour of the respondent-wife. In view of the findings recorded in respect of the Issue Nos. 1 to 4, which were decided against the appellant, the petition for divorce under Section 13 of the Act 1955 was dismissed with costs.

5. Feeling aggrieved against the judgment passed by the learned District Judge, Chandigarh, the husband filed this appeal which was registered as F.A.O. No. 72-M of 1994. The respondent-wife after service of notice of this appeal appeared and contested the case through her Counsel Mr. I.K. Mehta, Senior Advocate. The appellant, however, appeared in person and submitted his written arguments and also orally submitted his arguments.

6. I have perused the judgment of the learned District Judge.

7. Admittedly, the marriage of the appellant and the respondent took place on 2.10.1976 at Jalandhar. It is not disputed that in the first instance the appellant and the respondent lived together for a period of 22 days during which period the marriage was duly consummated and the parties cohabited. On the second occasion the appellant and his wife-respondent Romila lived together from 5.8.1987 to 22.11.1987. It is an admitted fact that no child was born out of this wedlock. It is also an admitted fact that the present petition filed under Section 13 of the Act 1955 is the 4th petition filed by the appellant. The first petition was filed by the appellant-husband being H.M. Petition No. 59 dated 22.3.1979 for divorce under Section 13 of the Act 1955 in the Court of District Judge, Jalandhar which was dismissed on 16.4.1980 vide copy placed on record of the file of the Trial Court as Annexure P1. In that petition for divorce the trial took place on the following issues :

(1) Whether the respondent has deserted the petitioner for a continuous period of more than two years immediately preceding the presentation of this petition ?

(2) Relief.

8. The learned District Judge, Jalandhar decided Issue No. 1 against the petitioner-appellant and held in para 7, inter alia, under :

"It is not necessary for me to go into the details of the statements made by the parties. It was only to be seen whether the respondent has severed her connections with the petitioner permanently. This evidence would go to show that she has no intention to severe relationship even temporarily. This circumstance will over-shadow everything else and it proves the case of the respondent that she wants to live with the petitioner and it is he who is not keeping her. Even in Court, she offered to go and live with the petitioner. I have no reasons to doubt her bona fide."

9. In the result, the learned District Judge dismissed the petition for divorce filed under Section 13 of the Act 1955 vide his judgment dated 16.4.1980. There is nothing on record to show that this judgment was ever challenged by the appellant by filing an appeal against it. This was followed by a second petition filed by the petitioner-appellant under Section 9 of the Act 1955 which was filed in the Court of Sub Judge 1st Class, Jalandhar on 3.5.1983. The said petition went on trial for more than 3V4 years and was eventually dismissed by Shri Beant Singh, PCS, Sub Judge 1st Class, Jalandhar vide his judgment dated 16.9.1986. A copy of the judgment has been placed on record of the Trial Court as Annexure P2. The learned Sub Judge 1st Class, Jalandhar framed the following issues for trial :

 
 (1) Whether the respondent has withdrawn
         from the society of the petitioner ?                           OPR
(2) If so, whether she has withdrawn with 
    reasonable and sufficient cause ?                                   OPR
(3) Whether the petition is not maintainable ?                          OPR
(4) Whether the petition is barred by the
    principle of res judicata                                            OPR

(5) Relief. 
 

10. The learned Trial Judge took Issue Nos. 1 and 2 together and decided these issues against the petitioner-appellant. Issue No. 4 was also decided against the appellant. Issue No. 3 was decided in favour of the respondent and against the petitioner-appellant. In view of his findings on aforesaid issues the learned Sub Judge, Jalandhar dismissed the petition with costs. The learned Trial Judge while deciding Issue Nos. 1 and 2 held in para 17 as under :

"Protestations of the petition notwithstanding one is constrained to note that he had got scant regard for truth. In his divorce petition before the learned District Judge, Jalandhar, he went to the unpardonable extent of stating that there was no consummation of marriage, because the respondent resisted it. However, he has now made a volte-face and admitted that marriage was consummated. I wonder, therefore, if any credence can be lent to the testimony of such a mendacious person. Therefore, on the basis of totality of the evidence on record, it must be unhesitatingly concluded that the respondent has not withdrawn from the society of the petitioner, but rather the petitioner has forced her to leave his company. Therefore, there is sufficient justification for her living separately from him."

The learned Trial Judge further held in para 18 inter alia, as under :

"...He filed a petition for divorce against his wife which was dismissed by the learned District Judge by his judgment Exhibit RY and decree RZ. This fact by itself shows that he is not keen to have the restitution of conjugal rights with the respondent and that the petition has been filed with some ulterior motive presumably to create a fresh ground for divorce."

11. The petitioner-appellant feeling aggrieved against the judgment of the learned Sub Judge, Jalandhar filed F.A.O. No. 216-M of 1986 in this Court which came up for hearing on 5.8.1987 before Hon'ble J.V. Gupta, J. (as then he was), who enquired whether the respondent-wife was prepared to live with the husband and whether the matter could be patched up. The respondent, despite having judgment of the Trial Court in her favour readily agreed to go and live with the husband. This Court passed the following order in the F.A.O. aforesaid :

"Parties are present with their Counsel. They are ready to live together. The wife is prepared to go with her husband straight from here. The husband has assured this Court that he will treat her properly.

The case is adjourned to 12.10.1987.

Sd/-    

5.8.1987"

12. It appears that the parties i.e. the appellant-husband and the respondent-wife went to the matrimonial house and lived together there. The F.A.O., which was ordered to be listed on 12.10.1987, was adjourned to 27.10.1987 and thereafter to 9.11.1987. During all this period, the respondent-wife lived with the petitioner-appellant. The appeal came up for hearing on 9.11.1987 on which date the appellant-husband putforth a further condition that the respondent-wife should resign from her job because after she had been turned out of the house of her husband she acquired teaching qualification and had got employment as teacher in Government School at Faridabad. It appears that the respondent readily agreed to give up her job and as a consequence of the agreement, the statements of the appellant-husband and the respondent-wife were recorded in the F.A.O. aforesaid which was disposed of on that very day i.e. 9.11.1987 by the following order passed by the Court :

"The parties are present in Court. They have compromised. Let their statements be recorded.

 9.11.1987                                                 Sd/- J.V. Gupta, Judge" 
 

Statement of appellant Shashi Kumar Khanna was recorded as under : 
  

"We have compromised the matter. Both of us are living happily together since 5th August, 1987. My wife Smt. Romila is in service. I want that she should resign in order to live a happy matrimonial life. She has no objection to the same. 
 9.11.1987                                                 Sd/- J.V. Gupta, Judge" 
 

Statement of respondent-wife Smt. Romila was recorded as under : 
 

"I have heard the above statement of my husband and accept the same. I have no objection to resign my present post in order to live happily with him.
 9.11.1987                                                 Sd/- J.V. Gupta, Judge"
 

13. It is not disputed that in view of these statements, F.A.O. No. 216-M of 1986 filed by the appellant was dismissed as having been rendered infructuous. The copy of the order and the copies of the statements of the parties have been extracted in the written statement filed by the respondent in the Trial Court in this case which have not been controverted by the appellant. It appears that the petitioner-appellant and the respondent-wife lived together after 9.11.1987 as well, upto 22.11.1987 when according to the averments made by, the appellant the respondent-wife left the house of the appellant and since then she was residing separately from her husband, the appellant. The appellant has made a specific averment in para 15 of his petition filed under Section 13 of the Act 1955 wherein he has alleged that the respondent ultimately deserted the appellant on 22.11.1987 and since then the parties are living separately. The respondent-wife has, however, in her written statement in the preliminary objections contended that :

"During the period of 3 months, the respondent lived with the petitioner dutifully as his wife. He, however, kept constantly asserting that he had taken her in compliance with the order of the High Court and that he had no intention to keep her and in fact he was only making it a ground for obtaining divorce in future. The respondent honestly felt that the petitioner was trying to tease her by making such statements and in fact he really wanted to keep her otherwise he would not have made such statement in the Hon'ble High Court.

That during her stay with the petitioner for 3 months, the parties led married life and cohabited as husband and wife and the excesses in the matter of sexual relations committed by the petitioner were tolerated by the respondent in the hope that it would pave the way for smooth married life.

That on 9.11.1987 immediately after coming out of the High Court, he told the respondent that she should go back to Faridabad to her parents' home as he was not prepared to keep her. The respondent was shocked and felt greatly disturbed over this change of face and requested him that he should take her to Jalandhar with him, where they can calmly discuss the matter.

That on 9.11.1987 in the evening, the respondent along with the petitioner went to the office of the respondent's Counsel, where a letter of resignation was typed and handed over to the petitioner for transmission to the Head Master of the School at Faridabad.

That in view of the entreaties and persuasion of the respondent, the petitioner took her to Jalandhar on 10.11.1987. He was entirely a changed man, fretting and fuming that his plans had gone astray and that he bluntly told the respondent that he had never expected her to agree to live with him and that while he had told the Hon'ble High Court that he wanted to keep her, he was under the impression that the respordent would refuse this offer and thereby smoothen his path to obtain a decree of divorce as advised. The acceptance of the offer by the respondent had completely upset his scheme.

That the respondent tried to pacify him and impress upon him that it would be highly improper for him to turn her out of the home at this juncture and it would greatly disturb her emotionally and upset her parents and members of her family, who had reconciled to the situation. She also tried to impress upon him that it was not a child's play to take the respondent on solemn assurance being given in the High Court and thereafter kicking her out because of some secret motive behind the whole move, but he refused to listen. Instead he forced her to make certain writings against her wishes. When she refused to oblige, he gave her beating with slaps and first blows and would not even permit her to cry so that neighbours may not come to know about the same. This continued for a week.

That on 17.11.1987, when women folk in the neighbourhood saw the swelling on the cheeks and bluish marks on the face of the respondent, they enquired about the matter and all the neighbours in the vicinity advised that the petitioner was not likely to improve and mend his ways and it would be in her own interest that she should leave the house otherwise he may cause greater injury and harm in fits of anger and his violence may not be checked up by anybody because nobody wants to interfere in the affairs of others.

That on 22.11.1987, the petitioner took the respondent in the morning train to Delhi and reached there at 4.00 p.m. He left her at the house of Shri Roshan Lal Kundra, maternal uncle of the respondent, though originally he had told her that he would accompany her to Faridabad, because the respondent insisted that he should either leave her at Chandigarh before the Hon'ble Judge of the High Court from where he had taken her or with her parents, but he refused both these options. Inspite of requests by her relatives at Delhi that he should leave her at Faridabad it was without any effect and he left her at Delhi and went back."

14. The respondent-wife, it has been averred in the written statement, filed a Civil Misc. Application No. 6125-C-II of 1987 in F.A.O. No. 216-M of 1987. Notice was issued in the said civil misc. case to the appellant-husband and the facts were placed on record as no further action was called for in the case.

15. It was thereafter that the appellant filed third petition against the respondent-wife and this time it was a petition for divorce under Section 13 of the Act 1955 in the Court of Shri G.S. Chahal, the then District Judge, Jalandhar on 7.9.1988. Upon receipt of notice of the petition, the respondent-wife put in appearance through her Counsel. The respondent was apprehensive that she may not be able to pursue her case in the third petition aforesaid before the District Judge, Jalandhar and as such, she filed an application in this Court seeking transfer of the divorce case from Jalandhar. The transfer application came up for hearing before Hon'ble J.V. Gupta, J. (as then he was) and the petition under Section 13 of the Act 1955 was transferred to the Court of District Judge at Chandigarh. A copy of the order has been placed on record of the Trial Court as Annexure P4. The respondent-wife appeared in the Court of the District Judge. An effort was made to bring about reconciliation between the husband and the wife but the same did not succeed as the petitioner- appellant was not prepared to take the respondent-wife with him. The case was adjourned to 4.10.1989 and then to 20.10.1989 on which date the appellant got his petition dismissed as withdrawn. It has been averred that though the appellant did not take any further action after the petition under Section 13 of the Act 1955 had been got dismissed as withdrawn but he wrote some letters holding out threats to the respondent-wife. It is now for the 4th time that the appellant-husband has filed this petition for divorce under Section 13 of the Act 1955 containing almost similar allegations as had been made in the earlier petition which was got dismissed as withdrawn. So far as the divorce petition is concerned, the instant petition is the third petition filed by the appellant-husband. As mentioned earlier, the respondent-wife has categorically denied the allegations of committing such acts which have caused any mental cruelty to the appellant-husband. On the other hand, she has alleged that she is being unnecessarily dragged into frequent litigations by the appellant by filing such petition, one after the other and he, somehow or the other, is interested in getting rid of the respondent-wife.

16. In order to corroborate his averments, the appellant-husband entered into the witness box as P.W.1 and reiterated the averments made in the petition about cruelty and desertion against the respondent-wife. He was cross-examined at length on behalf of the respondent-wife. In his cross-examination he admitted that the first petition for divorce was filed on the ground of desertion and the same was " dismissed by the District Judge, Jalandhar and he did not file any appeal against that dismissal. He further admitted that he filed a petition for restitution of conjugal rights on 3.5.1983 which was dismissed on 16.9.1986. He admitted further that he filed an appeal against the dismissal of the petition under Section 9 of the Act 1955 which was also dismissed on 9.11.1987 as having been rendered infructuous. He admitted the fact that during the hearing of his appeal in this Court on 5.8.1987 he was asked by the Hon'ble Judge whether he was prepared to take and keep the respondent as his wife and on indicating his willingness the respondent-wife was also asked similar question and she also indicated her willingness to go and live with him as his wife. He, however, denied that he took the respondent-wife to his house straight from the Court premises but admitted having given assurance to the Court that he would keep the respondent-wife befittingly. He also admitted that at that time he did not put forward a condition that the wife should resign her job. He admitted that it was on 9.11.1987 that he asked that the respondent should resign her job and the respondent-wife had agreed to do so in the presence of the Hon'ble Judge of this Court. He also admitted having stated before this Court that he and his wife, the respondent were living happily since 5.8.1987. He further stated that he had not disclosed to the Hon'ble Judge of this Court that the respondent had harassed him a good deal and that she had treated him with cruelty. According to his statement, he and his wife lived together as spouses till 22.11.1987. On further cross-examination the appellant-husband stated that the only stumbling-block was her refusal to resign her job otherwise at that time there was no other discord between them. This statement will go a long way to show that the allegations made by the appellant that the respondent-wife had been treating him with cruelty and not showing any regard to him and openly saying that he was not to her liking and she would not live with him as his wife, is not a correct statement of facts. According to the statement of the appellant the only stumbling-block was the refusal of the wife to resign, which fact is duly controverted by the respondent-wife who has all through stated that she was ready and willing, even to resign her job and live with him provided he cared after her. It may be mentioned that the appellant alleged in para 11 of the petition under Section 13 of the Act 1955 that after the compromise which took place on 9.11.1987 in the F.A.O. aforesaid they lived together for about 13 days but during this period the petitioner-appellant was treated with cruelty both physically and mentally. In para 12 he made specific allegations about the respondent-wife failing to discharge her marital obligations and alleged that the appellant was totally denied sex during this period despite best efforts and despite congenial atmosphere for the same. He went on to allege that the respondent did not allow him (the appellant) to touch her and she openly said that she had absolutely no intention to live with the appellant. He also alleged that the respondent failed to perform her marital obligations and duty to cook for the appellant who used to fetch food from outside. It was also alleged that she refused to resign her job. So far as denial on the part of the respondent-wife to submit herself for sex to the appellant, the appellant in his cross-examination stated that :

"...The respondent had refused to perform her marital duty by refusing sex during the period 9.11.1987 to 22.11.1987, before then she had been permitting me to have sex."

17. In view of this statement the refusal on the part of the wife to perform her martial duty is confined to the period from 9.11.1987 to 22.11.1987 i.e. for a period of 14 days whereas in the petition the appellant has made a general allegation that throughout the period he was denied sex by the respondent-wife. As far as the refusal to cook for the petitioner-appellant is concerned, he stated in the cross-examination that :

"During the period 5.8.1987 to 9.11.1987 the respondent had continued to cook for both of us. Thereafter till 22.11,1987 she had as well continued to cook for both of us and that on one or two occasions she had refused to cook."

18. This statement of the appellant totally belies the allegations made to the contrary in the petition filed by him under Section 13 of the Act 1955.

19. As regards the third petition filed by the appellant-husband for divorce he in his cross-examination stated that "it is correct that thereafter I had addressed letter dated 8.9.1989 to this Court, true copy of which is Ex. R.1, which has seen today. It is correct that on-20.10.19891 made a statement which was recorded by this Court that 1 did not want to pursue my petition and the same be dismissed as withdrawn and in terms thereof my that petition for divorce was dismissed as withdrawn".

20. The appellant, however, denied that this 4th petition filed under Section 13 of the Act 1955 is the verbatim replica of the third petition filed under Section 13 of the Act 1955.

21. In the petition, the husband-appellant alleged about the facts and circumstances leading for the withdrawal of the third petition. He alleged in para 13 of his petition that the respondent-wife had put up a condition regarding the withdrawal of the writ petition before any talks of compromise and negotiations could be held and it was under those circumstances that he had to withdraw the third petition under Section 13 of the Act 1955 pending in the Court of District Judge, Chandigprh. In para 14 he alleged that no compromise could be arrived at due tothe adamant attitude of the respondent-wife. The appellant was subjected to cross-examination in this regard and in his cross-examination he stated that :

"At the time of withdrawal of my third petition and the consequent dismissal of that petition had withdrawn on 20.10.1989.I had made no mention before this Court, I was withdrawing the petition and getting the same dismissed as withdrawn as I have been asked by the respondent that negotiations for settlement would be started only when that petition was withdrawn from that Court as I have mentioned now at page four in para 2 of my replication, in this case in the preliminary objections."

22. It will thus appear that the appellant made averments regarding the withdrawal of the third petition in order to put the blame on the respondent-wife and to explain the circumstances in which he made his statement for withdrawal of the third petition. From the statement of the petitioner, as quoted above, it will be abundantly clear that the respondent-wife had no role to play insofar as the withdrawal of the third petition is concerned. Towards the end of his cross-examination, the appellant made a categorical statement in these words :

"...Now I am not prepared in any circumstances to have the respondent back and to have her as my wife..."

23. The respondent-wife Smt. Romila entered the witness box and has stated in clear and categorical terms in the examination-in-chief itself as under :

"...I am ready and willing to live with the petitioner as his wife. I impose no condition whatsoever for so doing. After the dismissal of his petition as aforesaid the petitioner did not come to take me to his house nor have we lived together as spouses thereafter. At Faridabad I am living with my parents at their house. I am not interested in divorce at all."

In her cross-examination she stated that :

"After making statement in the Hon'ble High Court that I would resign, I had written my resignation letter in the High Court premises itself and handed this over to the petitioner who tore it up. Thereafter, the petitioner did not fetch me to his house after he had left me at Delhi. After we had lived together for 10/11 days at Jalandhar where he had taken me from the Hon'ble High Court. It is incorrect that I had written no resignation letter nor was any such resignation letter torn by the petitioner."

24. On her further cross-examination she stated that it was incorrect to say that her offer of living with the petitioner-appellant as his wife was sham. She also denied the suggestion that she was living away from the petitioner-appellant without any rhyme or reasons. She categorically stated as under :

"...I would have no need to continue in service if the petitioner keeps me in his house as his wife and provides for me. The witness has herself stated that upto now the petitioner has not provided me at all. I have upto now never levelled any false or baseless accusation against the petitioner so there is no question of my levelling of such accusation. It is incorrect that I had insulted any members of the brotherhood panchayat from the petitioner side."

25. This is the entire evidence led by the parties before the Trial Judge. The learned Trial Judge after appraising the evidence on record held, and in my considered view rightly so, that :

"This bona fide unconditional offer by her of her readiness and willingness to live with the husband is an infallible indicator that she has all along been so ready and willing to live with the husband as his wife and it was, on the other hand, that her husband who for reason or reasons best known to him, does not want to keep her as his wife. The onus of proving of both the issues (Issue Nos. 3 and 4) was on the husband. He has lamentably and woefully failed to discharge this onus."

26. Learned District Judge has rightly held that the decision in the previous petition will operate res judicata between the parties and has rightly decided Issue No. 1 against the appellant. As noted earlier, the appellant had in the earlier petition filed under Section 13 of the Act 1955 being Case No. 59 of 1979 made allegations against the respondent-wife about deserting him and also took the ground of cruelty. These grounds were decided against the appellant. Learned District Judge in the judgment under appeal made the following observation while recording findings on Issue No. 1 :

"...Vide his judgment dated 16.4.1980 certified copy of which is Exhibit R3 the then District Judge, Jalandhar had dismissed that petition of the husband for divorce under Section 13 of the Act holding that the husband, on whom the onus had rested, had failed to prove that the wife had denied herself to him or that she abhorred him and had likewise failed to prove that she had deserted him and that on the contrary it stood proved that the wife wanted to live with him, her bona fide offer in Court to go and live with him being an indicator in that direction. By virtue of this decision in that previous petition all this is res judicata between the parties and so far as the raising of the same pleas by the husband in the instant petition is concerned and as would be noticed he has indeed raised the same pleas in a major portion of the instant petition as well - he is barred from raising the same pleas in the instant petition by res judicata....."

27. While dealing with Issue No. 2 regarding the appellant being precluded from instituting this petition under the provisions of Order 23 Rule 1, Sub-rule (4) of Civil Procedure Code the learned District Judge held that the second petition filed for divorce was got withdrawn from the District Judge, Chandigarh vide order dated 20.10.1989. He further held that a copy of the petition, which was attached with the instant petition as Annexure P3, would go to show that the instant petition filed by the husband is an exact replica of that petition and that being so, the learned District Judge held that the husband-appellant was precluded from instituting this petition under the provisions of Order 23 Rule 1, Sub-rule (4) of the Civil Procedure Code. Consequently, Issue No. 2, in ,my considered view, was rightly so decided against the appellant-husband. So far as findings on Issue Nos. 3 and 4 are concerned, which relate to cruelty and desertion, I have already dealt with the evidence of the parties led before the learned District Judge, Chandigarh and am of the considered opinion that these issues have been rightly decided against the appellant.

29. Resultantly, no fault can be found in the findings recorded by the learned District Judge against the appellant. In view of the foregoing discussion, I find no merit in this appeal which fails and deserves to be dismissed with costs. Consequently, the appeal fails and is hereby dismissed with costs.