JUDGMENT
Chandra Reddy, C.J.
1. The point involved in this appeal beats on the applicability of the doctrine of Res Judicata to proceedings under the Hindu Marriage Act.
2. The appellant, who is the husband of the respondent, applied for a decree for judicial separation against his wife in the Subordinate Judge’s Court, Kavali, on the allegation that she had deserted him some years before the institution of the petition.
3. The petition was opposed by the wife inter alia on the plea that a prior decision, rendered by the District Munsif’s Court, Kavali, that the husband had abandoned his wife and therefore the latter was entitled to separate maintenance operated as res judicata in the subsequent proceedings. This issue was tried as a preliminary one and it was found in favour of the respondent, the wife. In this view of the matter, the Subordinate Judge dismissed the petition filed by the Husband under Section 10 of the Hindu Marriage Act, 1955. It is this view of the Subordinate Judge that is impugned before us in this appeal preferred by the aggrieved husband.
4. It is contended by Sri Venkatarama Sastry, learned counsel for the appellant, that since the condition regarding the competency of the former Court to try this matter is not complied with in that it was not competent for the District Munsif to entertain proceedings under the Hindu Marriage Act, this case is not governed, by the doctrine of res judicata. The learned counsel argues that notwithstanding the fact that the plea of res judicata was founded on general principles of law and not on Section 11 C. P. C., the condition mentioned above had to be fulfilled when the Court which tried the earlier suit was not one of exclusive jurisdiction. This argument is countered by the learned counsel for the respondent by the argument that when the plea of res judicata rested on general principles of law all that was necessary to establish was that the Court that heard and decided the former case was a Court of competent jurisdiction and It was not necessary in such a case to also prove that it had jurisdiction to hear the later suit. In support of this argument, reliance is placed by the learned counsel on the observations of their Lordships of the Supreme Court in Raj Lakshmi Dasi v. Banamali Sen, , Mahajan J. (as he then was), who delivered the opinion of the Court, remarked :
“The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone. Men a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court ol competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit.”
5. It is argued by Sri Venkatarama Sastry that these observations should be understood in the light of the facts of that case and the subsequent sentence following them, namely:
“A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts, etc.”
The learned counsel argues that the rule stated in the passage extracted above is applicable only to cases of Judgments rendered by Courts of exclusive jurisdiction and does not govern cases tried and decided by ordinary civil Courts.
6. As substantiating this distinction, he relies on the judgment of the Supreme Court in Bhagwan Dayal v. Reoti Devi, (SC). It is not necessary for us to express any opinion on this controversy, as we think that the matter is governed by another principle.
7. It should be borne in mind that the judgment in the maintenance suit decided the rights as between the parties and that being a proceeding inter partes, in our opinion, it cannot be pleaded as a bar to a petition, under Section 10 of the Hindu Marriage Act. A judgment by a Subordinate Judge or a District Judge in exercise of the Jurisdiction conferred upon them by the Hindu Marriage Act would surely fall within the purview of Section 41 of the Indian Evidence Act. Any decision given in the exercise of matrimonial jurisdiction would be conclusive not only against the parties to the proceeding but against the whole world. In other words, such judgments would operate as judgments in rein. The suit decided by the District Munsif would not bind anyone except the parties, thereto and it is only a Court exercising matrimonial jurisdiction that could made judgments in rem. A valid dissolution of marriage causes the relationship between the husband and wife to cease to exist as against the whole world. That result could not be achieved by a decision rendered by a Civil Court in a suit for maintenance.
8. We are reinforced in this opinion of ours by & Judgment of the Madras High Court in Chinnasami v. Hariharabadra, ILR 10 Mad 380 at p. 383. There an application for probate of a will was opposed by the widow of the testator on the plea that the will propounded was a forged one. Previously, her father made an application under the Guardian and Wards Act for a declaration that she was the guardian of the person and the property of the infant son of the testator. This application was opposed by the petitioners who applied for probate claiming to be the testamentary guardians of the property. In those proceedings, it was found that the will was a forgery and Orders were made accordingly. This was confirmed by the Court of appeal. In the probate proceedings, it was contended on behalf of the widow of the deceased that the question of the genuineness or otherwise of the will was res judicata. This contention was not upheld by the Madras High Court and in repelling it this is what the learned Judges remarked:
“In our opinion, the judgment of a probate Court granting or refusing probate is a judgment in rent, and therefore the judgment of any other Court in a proceeding inter partes cannot be pleaded in bar of an Investigation in the probate Court as to the factum of the will propounded in that Court.”
9. To the same effect is the ruling of the Bombay High Court in J. Rustomji v. P. Maneeksha, . Chagla, C. J., who spoke for the Court in dealing with a similar argument, observed as fallows:
“But there is a further and a more important aspect of the matter fo which we have already made reference and that is that not only the probate Court is an exclusive Court with regard to probate proceedings, but it is a Court whose judgment operates as a judgment ‘in rem’ an’ it is a Court of conscience and therefore on principle a decision ‘inter partes’ in a Civil Court cannot operate as ‘res judicata’ upon not only a Court of exclusive jurisdiction but upon a Court whose judgment operates as a judgment ‘in rem’. Therefore, while agreeing with respect, with the view expressed by the Supreme Court, we think it has no application to the question that we have to consider in this appeal.”
10. The principle contained in these passages apply with full vigour to the present case, although we are concerned here not with probate proceedings but with proceedings relating to matrimonial jurisdiction.
11. it follows that the petition giving rise to this appeal could not be rejected on the ground that the previous decision in a maintenance suit operates as res judicata in the subsequent petition.
12. For these reasons, we set aside the judgment under appeal and remit the case to the trial Court to be dealt with on merits. Parties will bear costs both here and in the trial Court.
