# Dinesh Verma @ Dinesh v. Smt. Malti Verma @ Malti Devi

- **Citation:** (2024) 11 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-14
- **Case number:** First Appeal No. 122 of 2023
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-verma-dinesh-v-smt-malti-verma-malti-devi-51085
- **Pages:** 9

## Headnote

(A) Family Law - Divorce proceedings -
Hindu Marriage Act, 1955 - Sections 13 -
grounds for divorce, Section 19 (1) -
Appeals, Section 28 - Code of Civil
Procedure, 1908 - Section 11 - Res
Judicata, Order II Rule 2 - Suit to include
the whole claim, Domestic Violence Act,
2005 - Section 12 - relief sought by the
aggrieved woman
- Principle of res
judicata - A fresh and subsequent cause of
action permits filing a second matrimonial
case even when an earlier case was
dismissed on similar grounds - Second
matrimonial case is not barred if it is
based on a new cause of action.(Para -
16,17)

(B) Word or Phrases - Cause of action - a
bundle of facts constituting the right of a
party which he or she has to establish in
order to obtain a relief from a Court -
same has to be tested on the anvil of
evidence led by the parties.(Para 16)

First matrimonial suit was by appellant - for
dissolution of marriage with respondent -
dissolved on the ground of desertion - Appellant
filed second divorce petition - after first petition
was dismissed - second case alleged subsequent
acts of cruelty by respondent - based on a
subsequent and fresh cause of action - issue -
maintainability of second divorce petition -
applicability of principle of res judicata. (Paras 3,
9, 10,16)
11 All. Dinesh Verma @ Dinesh Vs. Smt. Malti Verma @ Malti Devi
509
HELD: - Second matrimonial case for divorce
on ground of cruelty and desertion not hit by
principle of res judicata as it is based on new
and subsequent cause of action. Second divorce
petition was maintainable. Impugned judgment
was set aside. Matter was remitted to the Family
Court for fresh consideration. (Para - 17, 18)

Appeal allowed. (E-7)

List of Cases cited:

St. of Maha. & anr. Vs M/s National Construction
Comp., Bom. & anr., AIR 1996 SC 2367

## Text

508 INDIAN LAW REPORTS ALLAHABAD SERIES
33. So far as submission of learned
Standing Counsel that respondent No. 3
acted in compliance of order passed by
Additional Commissioner and Additional
Commissioner has not been made party in
the present petition, the petitioner is
directed
to
implead
the
Additional
Commissioner (Administration) Azamgarh
Mandal, Azamgarh, who has passed the
order dated 01.04.2021 and Additional
Commissioner (Judicial) who has passed
the order dated 03.02.2022 as party
respondent.

34.
The
newly
impleaded
respondent Nos. 7 and 8 shall also file their
personal affidavit explaining how such
orders were passed by them by the next
date fixed.

35. Since the petitioner has been
illegally dispossessed, the respondents
are directed to restore the possession of
the petitioner over the shop/ house in
dispute within a period of ten days from
today.

36. Learned Standing Counsel is
directed to communicate this order to
respondent No. 3 as well as respondent
Nos. 7 and 8 for necessary compliance.

37. Office to supply a copy of this
order free of cost to learned Standing
Counsel for necessary compliance.

38. List this case as fresh on
26.11.2024 at Serial No.1.
----------
(2024) 11 ILRA 508
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.11.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 122 of 2023

Dinesh Verma @ Dinesh ...Appellant
Versus
Smt. Malti Verma @ Malti Devi
 ...Respondent

Counsel for the Appellant:
Mohd. Yasin

Counsel for the Respondent:
Rakesh Kumar, Arun Kumar

(A) Family Law - Divorce proceedings -
Hindu Marriage Act, 1955 - Sections 13 -
grounds for divorce, Section 19 (1) -
Appeals, Section 28 - Code of Civil
Procedure, 1908 - Section 11 - Res
Judicata, Order II Rule 2 - Suit to include
the whole claim, Domestic Violence Act,
2005 - Section 12 - relief sought by the
aggrieved woman
- Principle of res
judicata - A fresh and subsequent cause of
action permits filing a second matrimonial
case even when an earlier case was
dismissed on similar grounds - Second
matrimonial case is not barred if it is
based on a new cause of action.(Para -
16,17)

(B) Word or Phrases - Cause of action - a
bundle of facts constituting the right of a
party which he or she has to establish in
order to obtain a relief from a Court -
same has to be tested on the anvil of
evidence led by the parties.(Para 16)

First matrimonial suit was by appellant - for
dissolution of marriage with respondent -
dissolved on the ground of desertion - Appellant
filed second divorce petition - after first petition
was dismissed - second case alleged subsequent
acts of cruelty by respondent - based on a
subsequent and fresh cause of action - issue -
maintainability of second divorce petition -
applicability of principle of res judicata. (Paras 3,
9, 10,16)
11 All. Dinesh Verma @ Dinesh Vs. Smt. Malti Verma @ Malti Devi
509
HELD: - Second matrimonial case for divorce
on ground of cruelty and desertion not hit by
principle of res judicata as it is based on new
and subsequent cause of action. Second divorce
petition was maintainable. Impugned judgment
was set aside. Matter was remitted to the Family
Court for fresh consideration. (Para - 17, 18)

Appeal allowed. (E-7)

List of Cases cited:

St. of Maha. & anr. Vs M/s National Construction
Comp., Bom. & anr., AIR 1996 SC 2367

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Shri Mohd. Yasin,
learned Counsel representing the appellanthusband and Shri Rakesh Kumar, learned
Counsel representing the respondent-wife.

(2) This appeal under Section 19
(1) of the Family Court Act, 1984 read with
Section 28 of the Hindu Marriage Act,
1955 has been filed by the appellant against
the judgment and decree dated 07.04.2023
passed by the Principal Judge, Family
Court, Ambedkar Nagar in Matrimonial
Case No. 287 of 2021 : Dinesh Vs. Malti
Devi, whereby the learned Family Court
has dismissed the matrimonial case filed by
the appellant for dissolution of marriage
under Section 13 of the Hindu Marriage
Act, 1955 on the ground of being barred by
the principle of res judicata.

(3) The factual matrix of the case,
along with the record of multiple legal
proceedings
between
the
parties,
is
summarised as under :-

 A) The appellant is the husband
and the respondent is the wife. Their
marriage was solemnized on 07.06.1993 in
accordance with Hindu Rites and Customs.
But it appears that there were problems from
the very inception for which appellant blames
not only the respondent but her family
members too.

B) It is on 26.04.2005 that the
appellant filed a Matrimonial Case No. 93 of
2005 : Dinesh Vs. Malti Devi, under Section
13 of the Hindu Marriage Act, 1955
(hereinafter
referred
to
as
'First
Matrimonial Case') for dissolution of
marriage against the respondent mainly on
the ground of desertion. This matrimonial
case was, however, dismissed by the Family
Court, Ambedkar Nagar vide order dated
28.02.2013 predicated on a reasoning that
desertion on the part of the respondent was
not proved by the appellant.
 C) Feeling aggrieved by the said
judgment and decree dated 28.02.2013, the
husband/appellant preferred First Appeal No.
42 of 2013 : Dinesh Vs. Smt. Malti Devi
before this Court. A learned Single Judge of
this Court, after appraising the judgment and
decree dated 28.02.2013 and the evidence on
record, returned a finding that though the suit
filed by the appellant itself was not
maintainable as per the averment made
therein inasmuch as the appellant himself has
averred
in
the
said
suit
that
the
respondent/wife had refused to live with the
appellant on 25.04.2005 and admittedly the
said suit was presented on 26.04.2005,
meaning thereby that the suit was presented
within two years, which is not as per the
provision of Section 13 of the Hindu
Marriage Act, 1955, although the Family
Court had not dismissed the suit on the
aforesaid ground but on another ground that
desertion on the part of the respondent was
not proved by the appellant, the learned
Single Judge of this Court dismissed the
aforesaid first appeal vide judgment and
order dated 11.10.2017 on the said ground of
non-maintainability of the suit.

D) The appellant, almost after
two and half years from the date of the
510 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid
judgment
and
order
dated
11.10.2017, again filed a Matrimonial Case
No. 287 of 2021 for dissolution of marriage
under Section 13 of the Hindu Marriage
Act, 1955 (hereinafter referred to as
'Second
Matrimonial
Case').
The
appellant, besides levelling almost identical
allegations as were made in the earlier case,
also
alleged
in
this
case
that
the
wife/respondent had filed a case under
Section 12 of the Domestic Violence Act,
in which Judicial Magistrate, vide order
dated
13.06.2012,
gave
a
slew
of
directions, including payment of lump sum
amount of Rs.20,000/- as litigation cost,
Rs.2000/- per month towards maintenance
and a right to be provided accommodation
in
favour
of
the
respondent-wife.
According to the appellant, he had
complied with the aforesaid order dated
13.06.2012 and in compliance therewith
had also provided to the respondent a room
in his house, wherein, while living in the
said room, cruelty has been inflicted by the
respondent on 04.09.2020, at about 12:00
noon. It was stated by the appellant that on
the said fateful day and time, when mother
of the appellant was alone, the respondent
and her brother-in-law Narendra Verma
and his brother Phool Chanda came and
without any rhyme or reason, hurled abuses
against appellant's mother and sister and
also beat them up with kicks and fists and
also
broke
various
household
items.
According to the appellant, when alarm
was raised by his mother and sister,
villagers rushed to the place of occurrence,
whereupon, all the assailants, including the
respondent ran away using Vehicle No.
U.P.
45-W-5556.
This
incident
was
reported by the appellant's mother at police
station Aliganj, upon which N.C.R. No. 20
of 2020, under Sections 323, 427 and 504
I.P.C. was lodged on 08.09.2020 at Police
Station Aliganj. Thus, it has been alleged
by the appellant that cause of instituting the
second suit arose subsequent to the
dismissal of the earlier suit/appeal. It has
also been stated that appellant and
respondent are residing separately in the
same premises in village Hithuri, Daudpur,
district Ambedkar Nagar.

E) In the second matrimonial
case,
notice
was
issued
to
the
wife/respondent. In response thereof, the
wife/respondent
appeared
before
the
Family Court and filed written statement,
wherein while reiterating the factum of first
matrimonial case of divorce filed by the
appellant, has denied the allegations made
in the second matrimonial case regarding
cruelty, however, it has been admitted by
the respondent/wife that in pursuance to the
order dated 13.06.2012 passed under
Section 19 of the Domestic Violence Act,
she is residing in a two room set
accommodation in her matrimonial house.
It was also stated that since the first
matrimonial case filed by her husband/
appellant for dissolution of marriage was
dismissed by the Family Court and the
same was affirmed by the appellate Court,
therefore, the second case filed by the
appellant for dissolution of marriage was
liable to be dismissed.

F) The record reveals that in the
second matrimonial case filed by the
appellant,
wife/respondent
filed
an
application under Section 24 of the Hindu
Marriage Act, 1955, which was allowed by
the
Family
Court
vide order
dated
17.12.2021 and the husband/appellant has
been
directed
to
pay
Rs.500/-
per
appearance to his wife/respondent towards
litigation expenditure, transportation and
other
expenditure.
Thereafter,
on
12.07.2022, following four issues were
framed by the Family Court in the suit :-

1. Whether respondent is legally
wedded to petitioner ?
11 All. Dinesh Verma @ Dinesh Vs. Smt. Malti Verma @ Malti Devi
511

2.
Whether
respondent
has
deserted the petitioner for more than last
two years ?

3.
Whether
respondent
has
continuously treated the petitioner with
cruelty ?

4. Whether petitioner is entitled
to any relief ?"

G) Parties led evidence before the
trial Court on the issues framed. In support
of his case, appellant/husband examined
himself as P.W.1 and his mother, namely,
Smt.
Prema,
as
P.W.2,
whereas
respondent/wife got her statement recorded
as D.W.1 and her brother, namely,
Phoolchand Verma as D.W.2.

H) The Family Court, instead of
dealing
with
each
issue
referred
hereinabove, considered the issue whether
the second matrimonial case is barred by
principles of res judicata or not ?.

I) On considering this issue, the
learned Family Court has returned a finding
that
the
plaintiff/appellant
filed
first
matrimonial
case
against
the
defendant/respondent under Section 13 of
the
Hindu
Marriage
Act,
1955
for
dissolution
of
marriage,
which
was
dismissed by the Family Court and
affirmed by the First Appellate Court and
further the plaintiff has filed the second
matrimonial case again against his wife,
complaining about the selfsame facts ever
since their marriage except that of a single
incident which allegedly took place on
04.09.2020, which appears to be part of the
same sequence of events which were
involved in the first suit, hence the learned
Family Court has returned a finding that the
second matrimonial case was hit by Section
11 of Code of Civil Procedure and is barred
by the principle of res judicata. Only on
this
ground,
the
Family
Court
has
dismissed the second matrimonial case
filed by the appellant under Section 13 of
the Hindu Marriage Act, 1955 vide
judgment and decree dated 07.04.2023. It is
this judgment and decree dated 07.04.2023,
which
has
been
challenged
by
the
appellant/husband in the present first
appeal.

(4) Shri Mohd. Yasin, learned
Counsel representing the appellant has
argued on the facts of the present case as
narrated herein above and additionally he
submitted
that
after
lodging of
the
complaint at police station, an N.C.R. No.
20 of 2020, under Sections 323, 427, 504
I.P.C. was registered, wherein after due
investigation, the police has also submitted
a charge-sheet on 05.08.2021. Submission
is
that
there
was
continuous
harassment/cruelty by the wife/respondent
and as such the appellant/husband was
constrained to file the second matrimonial
case for dissolution of marriage on the
ground of cruelty and also desertion, hence
the findings of the Family Court that the
second matrimonial case filed by the
appellant for divorce under Section 13 of
the Hindu Marriage Act, 1955 is barred by
the
principle
of
res
judicata,
is
unsustainable.

(5) Per contra, Shri Rakesh Kumar,
learned
Counsel
representing
the
respondent/wife has argued that the second
matrimonial case for divorce is a clear
abuse of process of law and the principle of
res judicata clearly applies to the case at
hand since the appellant had filed the first
matrimonial case for divorce on the ground
of desertion and the same was dismissed
and affirmed by this Court. It has also been
argued by the learned counsel that the
respondent/wife has also filed a case under
Section
125
of
Code
of
Criminal
Procedure, which got dismissed for want of
prosecution. Thereafter, the respondent/
wife has filed a case under Domestic
512 INDIAN LAW REPORTS ALLAHABAD SERIES
Violence
Act
against
her
husband/appellant, which was allowed. The
appellant's mother also lodged complaint
against
the
respondent,
which
was
registered as N.C.R. and the same is
pending before the trial Court.

(6) The crux of the submission of
the learned counsel was that once the
grounds as pleaded in the first matrimonial
case for divorce had already been rejected
and the same was affirmed by the First
Appellate Authority, the same could not be
agitated afresh by way of the second
matrimonial case for divorce. It has been
asserted that facts and issues raised in the
second matrimonial case were directly and
substantially in issue in the earlier case,
therefore, the subsequent case is barred by
the principle of res judicata. It has also
been submitted that the present case also
does not disclose any cause of action and
is, thus, not maintainable. Hence, the
Family Court has rightly dismissed the
second matrimonial case for divorce on the
ground of res judicata.

(7) Having regard to the rival
contentions of the learned Counsel for the
parties and going through the evidence on
record available before this Court in the
present appeal as well as the impugned
judgment and decree passed by the Family
Court, this Court finds that the point for
determination in this appeal firstly is as to
whether the present divorce case i.e. Case
No. 287 of 2021 is hit/barred by principle
of res judicata, since the appellant had
earlier filed a divorce petition and the same
was dismissed and appeal against it was
dismissed and suit was also dismissed
albeit on grounds other than given by trial
Court and, secondly, whether judgment of
the Family Court is sustainable ?. If the
answer is in the negative, then, the point for
determination would be as to whether the
appellant is entitled to a decree of divorce
on the ground of cruelty or desertion, as
claimed.

(8)
Appellant
had
filed
first
matrimonial suit, bearing No. 93 of 2005,
seeking grant of a decree of divorce under
Section 13 of the Hindu Marriage Act,
1955 on 26.04.2005, stating therein that he
was
married
to
the
respondent
on
07.06.1993 according to Hindu rites and
customs. In para-2 of the first matrimonial
suit, it was alleged that after marriage, the
respondent came to live with the appellant
but her behaviour towards the appellant and
his family members was cruel and she was
not able to perform household work due to
some defect on his left hand. In paras 3 and
4, it was alleged that respondent did not cooperate in performing the household work
and
the
respondent
wanted
to
live
separately with the appellant and when the
appellant did not listen the respondent,
then, she threatened to go to her parental
house. In para-5 and 6, it was alleged that
after great efforts respondent agreed to live
with the appellant and in the meantime, he
gave loan of Rs.50,000/- to the brother of
the respondent, namely, Phool Chandra and
after paying this amount, the respondent
came to matrimonial house but her
behaviour was again cruel. In para-7, it was
alleged that after about two months, the
respondent again went to parental home. In
para 10 and 11, it was alleged that inspite
of several efforts made by the appellant,
she did not come back and on 25.04.2005,
the respondent refused to perform her
marital obligation and refused to go for
settlement. Thus, the cause of action shown
in para-11 of the plaint was dated
25.04.2005 when respondent refused to
lived with the appellant, whereas first
matrimonial
suit
was
presented
on
11 All. Dinesh Verma @ Dinesh Vs. Smt. Malti Verma @ Malti Devi
513
26.4.2005 i.e. immediately after the cause
of action accrued to the appellant on the
ground of desertion i.e. within prescribed
period of two years. Apparently, the suit
seeking decree of divorce could have been
presented only after expiry of two years
from the actual date of desertion, however,
the trial Court had not considered the first
matrimonial suit for divorce on this ground
but had returned a finding that desertion on
the part of the respondent was not proved
by the appellant. In this backdrop, the first
matrimonial suit was dismissed by the
Family Court vide judgment and order
dated 28.02.2013. However, in First Appeal
No. 42 of 2013 filed by the appellant
against the judgment and order dated
28.02.2013, the learned Single Judge of this
Court had considered the aforesaid ground
i.e. the first matrimonial suit was filed by
the appellant within the prescribed period
of two years, which is contrary to the legal
provision of Section 13 of the Act, 1955.
Also while considering it, the learned
Single Judge had returned a finding that
evidence on record did not prove that the
respondent had deserted the appellant and
further the respondent had made allegation
of cruel treatment and also demand of
dowry on account of which she lived part.
In this backdrop, the learned Single Judge
dismissed
the
aforesaid
appeal
vide
judgment and order dated 11.10.2017.

(9) On 15.07.2021 i.e. after about
eight years from the date of dismissal of the
first matrimonial suit, the appellant filed
second matrimonial suit, bearing No. 287
of 2021, for grant of decree of divorce,
reiterating the almost identical pleadings of
first matrimonial suit in paras 1 to 10 in the
second matrimonial suit, however, in para11 to 24, different pleadings were made. In
para 11, it was alleged that though on
26.04.2005,
appellant
had
filed
first
matrimonial case on 26.04.2005 under
Section 13 of the Act, 1955 and before
filing it, in order to not pay the amount of
Rs.50000/- given by the appellant to the
respondent's
brother,
namely,
Phool
Chandra, the respondent had lodged a
F.I.R. on 17.03.2005 with concocted story.
In para-15, it was alleged that the
respondent had filed a case under Section
12 of the Domestic Violence Act in which
Judicial Magistrate, vide order dated
13.06.2012, gave a slew of directions,
including payment of lump sum amount of
Rs.20,000/- as litigation cost, Rs.2000/- per
months towards maintenance and a right to
be provided accommodation in favour of
the
respondent-wife.
Appellant
had
complied
the
aforesaid
order
dated
13.06.2012 and in compliance therewith,
the appellant had also provided to the
respondent a room in his house, wherein
respondent is living. In para-16, it was
alleged
that
while
living
in
said
accommodation, cruelty has been inflicted
by the respondent on 04.09.2020 at about
12:00 noon. On this fateful day and time,
when mother of the appellant was alone,
the respondent and her brother-in-law
Narendra Verma and his brother Phool
Chandra came and without any rhyme or
reason, hurled abuses against appellant's
mother and sister and also beat them up
with kicks and fists and also broke various
household items. When alarm was raised
by his mother and sister, villagers rushed to
the place of occurrence, whereupon all the
assailants, including the respondent ran
away using Vehicle No. U.P. 45-W-5556.
This
incident
was
reported
by
the
appellant's mother at police station Aliganj,
upon which N.C.R. No. 20 of 2020, under
Sections 323, 427 and 504 I.P.C. was
lodged on 08.09.2020 at Police Station
Aliganj. In para-19, appellant has alleged
that since 2005, appellant and respondent
514 INDIAN LAW REPORTS ALLAHABAD SERIES
are residing separately and since then there
is no cohabitation or relationship between
them. In para-21, it was alleged that the
cause
of
action
for
filing
second
matrimonial suit for divorce arose on
27.06.2021 when the respondent refused to
give consent for divorce on mutual consent.

(10) Having regard to the aforesaid
facts and circumstances of the case, what
this Court find is that first matrimonial suit
i.e. Suit No. 93 of 2005 was by the
appellant for dissolution of marriage with
the respondent. The marriage was sought to
be dissolved on the ground of desertion in
the first matrimonial suit, while in the
second suit i.e., Divorce Case no. 287 of
2021 the marriage is sought to be dissolved
between the same appellant and the
respondent on the grounds of continuous
cruelty and desertion.

(11) The principle of re judicata
has been codified under Section 11 of the
Code of Civil Procedure, which reads as
follows:

"11. Res judicata.- No Court
shall try any suit or issue in which the
matter directly and substantially in issue
has been directly and substantially in issue
in a former suit between the same parties or
between parties under whom they or any of
them claim litigating under the same title in
a Court competent to try such subsequent
suit or the suit in which such issue has been
subsequently raised, and has been heard
and finally decided by such Court."

(12) The principle enunciated in
Section 11 of Code of Civil Procedure
provides that no Court should try any "suit"
or "issue" in which the matter directly and
substantially in issue has been directly and
substantially decided in a formal suit. The
stress would be on the term "issue" used
under Section 13 of the Hindu Marriage
Act, 1955.

(13) Section 13 of the Hindu
Marriage Act, 1955 provides for grant of
divorce in certain cases. It enacts that any
marriage solemnized whether before or
after the commencement of the Act may be
dissolved on a petition presented either by
the husband or by the wife on any of the
grounds specified therein. Clause (ia) of
sub-section (1) of Section 13 of Hindu
Marriage Act, 1955 declares that a decree
of divorce may be passed by a Court on the
ground that after the solemnization of
marriage, the opposite party has treated the
petitioner with cruelty

(14) From the bare reading of the
above provision, it appears that the
principles of re judicata under Section 11 of
the Code of Civil Procedure is based on the
rule of law that a ground shall not be fixed
for one and the same cause. The only thing
the Court has to see is that whether new
suit is in fact founded upon a cause of
action distinct from the foundation of the
former suit.

(15) Even if the second suit under
consideration would have been filed on
some other ground, which was not a ground
in the earlier suit for dissolution of
marriage, yet, by virtue of application of
Order II Rule 2 of the Code of Civil
Procedure, he could not have succeeded
because the new suit is in fact founded
upon the same cause of action, as has been
held by the Supreme Court in the case of
State of Maharastra and Anr. Vs. M/s
National
Construction
Company,
Bombay and Anr., reported in AIR 1996
SC 2367. Paragraph 9 of the judgment
reads as under :
11 All. Dinesh Verma @ Dinesh Vs. Smt. Malti Verma @ Malti Devi
515

"......Both the principle of res
judicata and Rule 2 of Order 2 are based
on the rule of law that a man shall not be
twice vexed for one and the same cause. In
the case of Mohd. Khalil Khan v. Mahbub
Ali Khan, AIR 1949 PC at p.86, the Privy
Council laid down the tests for determining
whether Order 2 Rule 2 of the Code would
apply in a particular situation. The first of
these is, "whether the claim in the new suit
is in the fact founded upon a cause of
action distinct from that which was the
foundation for the former suit." If the
answer is in the affirmative, the rule will
not
apply.
This
decision
has
been
subsequently affirmed by two decisions of
this Court in Kewal Singh v. Lajwanti, AIR
1980 SC 161 at p.163: (1980) 1 SCC 290
and in Inacio Martins's case (1993) AIR
SCW 2163) (supra)."

(16) In present case, apparently, the
first matrimonial case for dissolution of
marriage filed by the appellant under
Section 13 of the Hindu Marriage Act,
1955 was filed on the grounds of cruelty
and desertion. In para-11 of the first
matrimonial suit, the appellant had stated
that cause of action in filing first
matrimonial suit accrued on 25.04.2005
when the respondent refused to perform her
marital obligation and refused to go for
settlement.
Whereas
in
the
second
matrimonial suit i.e. Matrimonial Suit No.
287 of 2021, in para-21, the appellant has
asserted that cause of action in filing the
second
matrimonial
case
arose
on
27.06.2021 when the respondent finally
refused for dissolution of marriage before
the Court. Moreso, the second matrimonial
suit is based on a subsequent and fresh
cause of action relating to the infliction of
cruelty and desertion on a subsequent date
and as such the second divorce petition is
very much maintainable and the principle
of res judicata does not apply. It has to be
reminded that "cause of action" means a
bundle of facts constituting the right of a
party which he or she has to establish in
order to obtain a relief from a Court and the
same has to be tested on the anvil of
evidence led by the parties. In the present
case, there is no adjudication on the
fresh/subsequent cause of action, which has
been raised by the appellant in the second
matrimonial case. No doubt, the appellant
raised the ground of cruelty and desertion
and filed the present/second case for
dissolution of marriage, however, it is
apparent from a plain reading of the second
matrimonial case for divorce that the cause
of action pleaded was different in the
earlier suit and as such this Court does not
find
any
legal
impediment
in
maintainability of the second matrimonial
case for divorce on the grounds of res
judicata.

(17) In view of the aforesaid
discussion, our decision on the point of
determination in this appeal is that the
second matrimonial case for divorce on
ground of cruelty and desertion is not hit by
the principle of res judicata as it is based
on new and subsequent cause of action.

(18)
Accordingly,
the
present
appeal is allowed. The impugned judgment
and decree dated 07.04.2023 is hereby setaside. The matter is remitted to the Family
Court, Ambedkar Nagar for deciding it
afresh, in accordance with law.

(19) Since the second matrimonial
case i.e. case No. 287 of 2021 : Dinesh Vs.
Malti Devi is of the year 2021, we hope and
trust that the Family Court, Ambedkar
Nagar shall make an earnest endeavour to
consider and decide the same within a
period of eight months from the date of
516 INDIAN LAW REPORTS ALLAHABAD SERIES
receipt of a copy of this order. It is clarified
that the parties shall not seek unnecessary
adjournment before the Family Court.

(20) Registry to transmit the trial
Court's record to the Family Court,
Ambedkar Nagar along with a copy of this
order for information and compliance
forthwith.
----------
(2024) 11 ILRA 516
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.11.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 413 of 2001

Mata Prasad & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Arun
Sinha,
Ashish
Raman
Mishra,
Maneesh Kumar Singh, Navita Sharma

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 207 & 313 -
Indian Penal Code, 1860 - Sections 147,
148, 149, 302, 300 & 304 - Appeal - against
conviction & sentence - offence of murder -
FIR - allegation that, accused appellants armed
with Pharsa, ballam, lathi assaulted the fatherin-law of the informant - investigation - trial by
session judge - conviction & sentence -
Evaluation of evidence - court finds that, (i)
there is no contradiction in the testimony of
prosecution witnesses on any point, as such, the
truthfulness of factual matrix cannot be doubt in
the absence of any material evidence to the
contrary - (ii) the ground of enmity, ground of
interested witnesses and ground of delay in
lodging FIR does not stand to appeal which is
proved beyond the reasonable doubt - (iii)
antemortem injuries found on the body of
deceased indicate that they were caused by the
Pharsa, ballam and lathi as such the medical
evidence corroborates with the ocular evidence
- (iv) The surviving appellants were armed with
lathi and they only wants to cause bodily
injuries to the deceased and they were not
having any intention to kill the deceased - held,
on
appreciation
of
peculiar
facts
and
circumstances of the case, instead of conviction
of the surviving appellants under section 302
r/w 149 IPC is concern offence would be
punishable u/section 304 part 1 of the IPC -
Appeal is partly allowed - impugned conviction
and sentence is liable to be altered and modified
- directions issued accordingly. (Para - 32, 35,
39, 45, 48, 49, 50, 51, 53, 54)

Appeal Partly Allowed. (E-11)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard learned counsel for the
appellants, learned A.G.A. for the State and
perused the material on record.

2. During the course of hearing of this
appeal, the appellant nos. 1 and 2 namely
Mata Prasad and Bhurey @ Dinesh Kumar
have died and the appeal insofar as it
relates to them has been abated vide order
dated
11.7.2023
and
16.8.2023
respectively. Thus, the appeal survives on
behalf of these appellants namely Pappu,
Puttan and Daddan(appellant nos. 3, 4 and
5) only.

(A) Prelude

3. By means of this criminal appeal,
the appellants, out of whom, only appellant
nos. 3, 4 and 5(hereinafter referred to as
appellants) survive have challenged the
judgment and order dated 26.5.2001 by
which learned Sessions Judge, Bahraich in
sessions trial no. 25 of 1999 arising out of