Judgment:
B. Subhashan Reddy, J.
1. Even though the matter came up at interlocutory stage, both the learned Counsel have requested us to hear and dispose of the appeal as the subject matter is a marriage dispute and it was filed against a preliminary finding.
2. This appeal is directed against the Judgment and Decree dated 21.12.1995 rendered by the Family Court, Hyderabad in O.S. No. 154 of 1995. The suit was originally instituted as O.S. No. 5277 of 1994 on the file of the IX Assistant Judge, City Civil Court, Hyderabad seeking a relief of restitution of conjugal rights by the appellant herein against the 1st respondent on the premise that there was a marriage inter se him and the 1st respondent on 28.12.1993. The same was denied and the case was being contested. The denial was in to and the 1st respondent is very categorical that the marriage was never performed as stated by the plaintiff appellant, that the same is an illusion and that the marriage certificate is a forged one. On the rival contentions, triable issues were framed and issue No. 5 was tried as a preliminary issue, which reads 'whether the suit is barred by principles of res-judicata in view of the dismissal of W.P. No. 16400 of 1994'. In the above issue, the number of the writ petition was wrongly mentioned as W.P. No. 5849 of 1993. The said issue was held in favour of the 1st defendant (1st respondent herein) and then the suit was terminated on the ground of res-judicata, and the result is this appeal. It is needless to mention that other issues were not tried because of the findings on the above issue No. 5.
3. We have heard either Counsel and perused the Order passed by this Court in W.P. No. 16400 of 1994 dated 19.10.1994.
4. In the above case also counter-affidavit was filed by the parents of the 1st respondent denying the marriage. Then the learned Judges hearing the above habeas corpus writ petition, which was filed by the appellant alleging that he had married the 1st respondent and that she was illegally confined by her parents, had examined the 1st respondent herein and were of the considered view that the 1st respondent was not illegally confined by her parents, who are the respondents 2 and 3 herein. In the above case, the learned Judges held :
'We are satisfied, on the basis of the statement given by the alleged detenue, that she has not been detained by her parents against her wish. On the other hand, she is willingly staying with her parents. The claim of the petitioner that he has married the alleged detenue appears to be totally untrue. There are absolutely no merijts in this writ petition. We record our displeasure that the petitioner has chosen to file a writ petition of this nature making wild allegations going to the extent of claiming that Ms. Samina Misbah is his wife. The Writ Petition is, therefore, dismissed with exemplary costs of Rs. 2,000/-.'
5. Mr. V. Venkataramana, the learned Counsel for the appellant, strenuously contends that the above observation made by a Division Bench of this Court in the habeas corpus writ petition cannot constitute a res judicata so as to non-suit the appellant from the Family Court, while Mr. Arab Jeiwant Raj, the learned Counsel for the respondents, supports the judgment of the Family Court on the ground that the Division Bench in the above writ petition was authoritatively ruled that the 1st respondent was not married to the appellant; as such, constitute a res-judicata.
6. The above habeas corpus writ petition was filed on the premise that the 1st respondent was married by the appellant and that against her wishes she was wrongfully confined by her parents as the latter did not approve their marriage. Counter-affidavit was filed by the parents stating that the 1st respondent was not married to the appellant, that she was voluntarily staying with them, that the marriage was a concocted fact and that the said allegations are not true. In a Habeas corpus petition, the scope of adjudication is only as to whether a person is wrongfully confined or not. No other issues can be adjudicated and even if any observation has been made, that is only for the purpose of adjudication of the habeas corpus petition, but cannot hold good as against other legal contentions, which a party is entitled to raise by filing a legal claim. In the instant case, a legal claim is made by the appellant that he had married the 1st respondent and that the marriage is subsisting. It is true that it is denied by the 1st respondent and so also her parents i.e., respondents 2 and 3. We are told across the Bar that there are two criminal complaints, which have been lodged by the respondents to the concerned police, alleging the commission of offences punishable under the provisions of the Indian Penal Code against the appellant and that the Courts of IV and X Metropolitan Magistrates, Hyderabad are seized of the matter and then the matters are transferred to the Court of the XXII Metropolitan Magistrate (Mahila Court), Hyderabad and are pending for consideration before the Court. It is also stated that the police, after preliminary investigation, had filed report stating that there is a primafacie evidence of marriage as evidenced by 'Nikhanama' and that the marriage he disputes is purely of civil nature. To this report, to close the case as not being fit for filing charge sheet, the respondents had filed objections and the same are posted for hearing before the said Criminal Court on 23.8.1996 and 31.8.1996. It is also stated that statements have been recorded. Clear picture will emerge after the orders are passed by the Criminal Court as to whether the Criminal Court is inclined to take cognizance of the case or not, basing on the said material and arguments. But, suffice it to say that the earlier order passed by this Court in habeas corpus petition in W.P. No. 16400 of 1994 (vide orders dated 19.10.1994) cannot constitute as res-judicata for the reason that there was no scope for the settlement of contentious issue as to whether there was a relationship of husband and wife subsisting between the appellant and the 1st respondent for the reason that the only issue which fell for consideration was as to whether the 1st respondent was confined by her parents against her wishes and once the Court was satisfied that the 1st respondent was not confined against her wishes and was living voluntarily with her parents, then a habeas corpus petition fails and that was ordered by this Court. No doubt, some observations are made with regard to marriage status. But, those observations have to be understood only in the context of the said habeas corpus petition and not as a final finding of fact that there was no marriage inter se the appellant and the 1st respondent. Even the exemplary costs of Rs. 2,000/- awarded cannot aid the contention of the respondents that this Court strongly felt that a wrong case was set up by the appellant that he had married the 1st respondent. That has to be understood that this Court did not approve the conduct of the appellant in choosing the Forum of this Court for issurance of the extra-ordinary writ of habeas corpus as there was no reasonable basis to assume that the 1st respondent was illegally confined by respondents 2 and 3 against her wishes.
7. In the circumstances, we set aside the Judgment and Decree of the Court below and remand the matter to the Court below to try the other issues on merits and in accordance with law. We also make it clear that whatever undertaking given by the 1st respondent before this Court pending disposal of this appeal disappeared with this order. We also make no comments with regard to the entitlement of the 1st respondent to marry or otherwise pending disposal of the suit before the Court below. To avoid necessary interpretations, which may emanate as contended by the learned Counsel for the respondents we are making it very clear that we did not decide that the marriage was performed between the appellant and the 1st respondent and that issue has got to be gone into by the Civil Court.
8. The appeal is allowed to the extent indicated above. No costs.