HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY
F.C.A.No.21 of 2009
12-09-2012
Smt. Ch. Padmavathi
Ch. Sai Babu.
Counsel for the petitioner: Sri P.V. Ramana
Counsel for Respondent: Sri G. Rama Gopal
<Gist:
>Head Note:
?Cases referred:
1. AIR 1988 AP 68
2. 2000(2) ALD 723 (DB)
3. AIR 1975 ALL. 94
4. AIR 2003 KARNATAKA 508
JUDGMENT: (per Hon'ble Sri Justice G.Krishna Mohan Reddy)
This appeal is preferred challenging order dated 24-01-2008 passed in
O.P.No.121 of 2005 (OP) on the file of the Judge, Family Court at Warangal
upholding the plea of the respondent/petitioner in the OP to dissolve marriage
between him and the appellant/respondent in the OP by a decree of divorce.
2. For the sake of convenience, we refer the parties hereinafter as they are
arrayed in the OP.
3. The OP was allowed in favour of the petitioner coming to the conclusion
that he could prove adultery between the respondent and one R. Narasimha Rao, a
Shunter in Railways, by reason of which it was also held that her cruelty
against the petitioner was also established consequently aggrieved by which the
present appeal has been preferred.
4. It is necessary to note briefly the claims or allegations made by the
petitioner and the respondent in the case for proper appreciation of the matter
respectively. Admittedly, the marriage of the petitioner and the respondent
took place on 26-05-1994. It is claimed by the petitioner that both of them
lived together for 10 years thereafter during which they begot two daughters
namely Varshini and Jyositha on 25-06-1995 and 17-11-1997 respectively. He
worked in Railways at several places. It is alleged by him that the respondent
was habituated to luxurious life, she used to harass him to meet her unlawful
demands in that context which were beyond his capacity and even though he
explained his plight and tried to convince her, she did not change or mend
herself. It is also alleged by him that she and her mother always harassed him
mentally and physically to give money for meeting her mother's debts. He
claims that because of their attitude, he was not able to discharge his duties,
whereas unable to cope up with the attitude of the respondent, he issued a legal
notice on 10-06-2003 mentioning various unpleasant incidents that occurred in
between them and also seeking her to cooperate with him for obtaining divorce in
between them, but she did not give any reply, however, at a belated stage, she
promised to mend herself which he believed, but she continued to behave as
before. It is alleged by him further that on 16-06-2006 at about 5-00 a.m. when
he returned home, he found her in compromising position with his colleague R.
Narasimha Rao, a Shunter in Railways, who fled away having seen him following
which he raised hue and cry, however on the other hand, she approached her
relatives namely Chander Rao, D. Seetha Ramaiah and Srinivas, who came to his
house on
19-06-2005 and who were appraised of the said incident, but those persons and
the respondent mercilessly beat him and caused bleeding injuries on his head, in
consequence of which he was admitted in Rohini Hospital, Hanmakonda followed by
giving a report in the police station at Subedari against the respondent, but no
action was taken by the police having been influenced by the respondent, as a
result of which he filed complaint on the file of the IV Additional Judicial
Magistrate of First Class, Warangal against her and others to prosecute them for
offences punishable under Sections 326, 420, 448, 497 and 506 read with 34 of
IPC which was forwarded to the police concerned for necessary investigation and
report, but again no action was taken by the police.
5. The plea of the respondent is total denial of the allegations made against
her. She claims that at the time of marriage, her parents gave Rs.1,40,000/- as
dowry and Rs.60,000/- as loan and her grandfather presented 17 soverins of gold
apart from giving household articles to the petitioner. She alleged that the
petitioner along with his mother and sister harassed her several ways narrating
several incidents. It is also according to her that the said R. Narasimha Rao,
a friend of the petitioner, used to come to their house which circumstance was
taken advantage of to create a false story of adultery.
6. For the petitioner, he got himself examined as PW-1 and got examined one
Qamarunnisa Begum as PW-2 and got marked Exs.A-1 to A-7. For the respondent,
she got herself examined as RW-1 and got marked Exs.B-1 to B-3.
7. Evidence was let in in accordance with the pleas taken in the petition and
counter. Whereas PW-1 deposed as per the averments made in the petition, PW-2
deposed as follows - she was the neighbour of the petitioner, on 16-06-2005 at
about
5-00 PM, the petitioner after attending to his job returned back, later she
found him raising hue and cry that his wife was not opening the doors of their
house even though he called her, then she got woke up and then found one person
running in front of her carrying clothes and rushing to the ground floor of the
house and also leaving the place. She also deposed that after the said person
went out of the house of the parties, the respondent opened the doors of their
house. She further deposed that she was informed that the said person was one
Narasimha Rao, a colleague of the petitioner, and on her enquiry, the petitioner
revealed that the respondent was leading adulterous life with that person.
She further deposed that she then went into the bedroom of the house of the
parties in the ground floor and found the petitioner raising hue and cry that he
would commit suicide expressing that he could not live with the respondent,
following which she (PW-2) requested him not to commit suicide and also
convinced him to see that the matter was settled amicably. She also deposed
that immediately the petitioner went out to inform the relatives of the
respondent about the incident.
8. The Court below mainly accepted the evidence of PW-2 on the ground that
there was no need for her to speak falsehood, while accepting the evidence of
PW-1 also. The Court below consequently held that the respondent was guilty of
cruelty against the petitioner also. The Court below observed that the
adulterer need not be added as a party in the OP following the decision reported
in GALI KONDAIAH v. GALI ANKAMMA 1, in which with regards to the same question
of impleading an adulterer, observed that Rule 8 of the Rules framed under the
Hindu Marriage Act which provides "where a husband's petition alleges adultery
on the part of the respondent, the alleged adulterer shall, if he is living, be
made a co-respondent in the petition.", was not applicable because it was
enacted prior to the amendment of Section 13 of the Act by reason of which
provision (Section 13) even a stray incident of sexual intercourse between one
of the spouses with any other person would come under the purview of that
provision for granting divorce in favour of the other spouse. As found in the
discussion made in the impugned order, learned Advocate for the respondent
relied upon a decision reported in MIRAPALA VENKATA RAMANA v. MIRAPALA PEDDIRAJU
2 to assert that without adding the adulterer, he being a necessary party, the
petition should not be entertained, but it appears that that decision was not at
all considered by the Court below.
9. Learned counsel for the respondent likewise would contend that when
there is a plea of adultery, the adulterer is a necessary party whereby non-
adding of him as a party is fatal to proceed with the case. On the other hand
learned counsel for the petitioner would contend that in view of the amendment
of Section 13(1(i), the adulterer need not be added as a party in the case.
10. Therefore, it is to be deliberated about the question of adding the
so-called adulterer as a party to the petition as a condition precedent to
entertain the matter in the light of various circumstances enumerated and also
consequently how far the verdict of the Court below is sustainable.
11. In MIRAPALA VENKATA RAMANA's case (2 supra), this Court, having
examined similar question of adding of an adulterer with reference to necessary
pleadings and evidence adduced, held that in a case of divorce basing on
adultery, the alleged adulterer being a necessary party, ought to have been made
as the second respondent in the case, but the petitioner-husband failed to
implead him by reason of which, the O.P. was bad for non-joinder of necessary
party having been fortified by a judgment of Allahabad High Court in UDAI NARAIN
BAJPAI v. SMT. KUSUM BAJPAI 3, wherein it was held as follows:
"Learned Counsel for the respondent also placed reliance on the decision in AIR
1942 ALL. 223 (supra) for the purpose of contending that till such time as the
appellant's application for amendment of his petition by addition of the alleged
adulterers as co-respondents was allowed and the petition was amended
accordingly, it was not in accordance with law and not maintainable. It was
urged that till the co-respondents were impleaded it was not open to the Court
either to frame issues in the petition or admit evidence on issue No.5 and
consequently the framing of the issues by the trial Court as well as the finding
on issue No.5 are without jurisdiction. There is force in this contention which
must be accepted."
There was no specific discussion in that decision of this Court with regards to
the question of application of Rule 8 of the Rules which was enacted prior to
the amendment of Section 13 of the Act. This poses a question as to whether
the decision rendered in MIRAPALA VENKATA RAMANA's case (2 supra) can be held to
be applicable here by virtue of the said Rule.
12. It is to be very much reckoned with what is contained in Rule 8
which reads as follows:
"Co-respondent-(1) Where a husband's petition alleges adultery on the part of
respondent, the alleged adulterer shall if he is living be made a co-respondent
in the petition:
Provided, however, that in case the adulterer's name, identity or whereabouts
are unknown to the petitioner inspite of reasonable inquiries made and the Court
is satisfied that it is just and expedient so to do, it shall, on the
application of the petitioner, dispense with the naming of the co-respondent.
(2) In every petition under Sec. 13(2) of the Act the petitioner shall make
'the other wife' mentioned in that Section a co-respondent.
(3) In every petition under Sec.11 of the Act, on the ground, that the
condition in Sec. 5(i) is contravened, the petitioner shall make the spouse,
alleged to be living at the time of the marriage, a co-respondent."
The first clause is relevant here. There is no express provision by which
this provision has been deleted. Significantly this provision in clear terms
enjoins that where a husband's petition alleges adultery on the part of the
respondent, the alleged adulterer shall if he is living be made a co-respondent
in the petition subject to the proviso incorporated thereunder, but this proviso
is not applicable here because it is not the case of the parties that the
identity of the alleged adulterer has not been known to the petitioner. If this
Rule is to be enforced, definitely the alleged adulterer should be made as the
co-respondent in the petition for the effective disposal of the case. This
depends upon whether by virtue of the enactment of the amended provision of
Section 13(1)(i), the same provision became redundant. On the other hand, the
amended provision of Section 13(1(i) of the Act reads as follows:
"Divorce.
(1) Any marriage solemnized, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party-
(i) has after the solemnization of the marriage had voluntarily sexual
intercourse with any person other than his or her spouse."
13. A petition under Section 13(1(i) therefore involves an allegation of
voluntary sexual intercourse by the spouse with a
3rd party. The amendment does not disqualify the Rule in specific terms. In
other words the amendment does not have any bearing upon the enforcement of the
Rule, thus it continues to be in force. Definitely by virtue of the amendment,
the provision was liberalized as it only enjoins now that if one of the spouses
had voluntary sexual intercourse with any person other than his or her spouse,
that is a ground for dissolving the marriage between the spouses by a decree of
divorce. This leads to consider what is meant by adultery in the present
context.
14. The first part of Section 497 of IPC defines what is meant by adultery. It
contemplates "whoever has sexual intercourse with a person who is and whom he
knows or has reason to believe to be the wife of another man, without the
consent or connivance of that man, such sexual intercourse not amount to the
offence of rape, is guilty of the offence of adultery". This provision makes it
very clear that even a single incident of sexual intercourse with a person who
is and whom he knows or has reason to believe to be the wife of another person,
without the consent or connivance of that other person, amounts to adultery
which comes within the ambit of Section 13(1(i) of the Act in the context of
proceeding against the wife for divorce. Thereby there is no need of one of the
spouses living in adultery continuously to attract Section 13(1)(i) of the Act.
15. In the context of adding the alleged adulterer as a party in the divorce
O.P., what is required to be considered is as to whether any alleged finding of
adultery would adversely affect the interest of the adulterer by reason of which
an opportunity should be provided to him to defend himself to disprove the claim
of adultery applying the concept of the principles of natural justice.
This analogy is to be applied irrespective of enacting a Rule of Law for adding
him as a party to the divorce proceedings. As a matter of fact his presence in
the proceedings helps better to effectively and completely adjudicate the
controversy and also safeguard his interest.
16. In ARUN KUMAR AGARWAL v. RADHA ARUN 4, a Division Bench of Karnataka High
Court observed similarly under similar circumstances as follows:
"Where such adulterer is named in the petition and evidence is let in to show
that the spouse had intercourse with such person, the Court will have to record
a finding that the spouse had a voluntary sexual intercourse with such named
person. There is no
gain-saying that such a finding/decision will adversely affect the reputation of
the person who is alleged to have committed the adulterous act. Public interest
and principles of natural justice require that the person concerned should have
an opportunity to defend his reputation before such a finding is recorded. It
is precisely for this reason that Rules framed by several High Courts
(Allahabad, Andhra Pradesh, Mumbai, Delhi, Gujarat, Himachal Pradesh, Kerala,
Chennai, Orissa, Patna, Punjab and Rajasthan) specifically require that the
alleged adulterer should be impleaded as a co-respondent in a petition under
S.13(1)(i) of Hindu Marriage Act, even though no relief may be claimed against
him. We strongly commend amendment of the Hindu Marriage (Karnataka) Rules,
1956, to introduce such a provision. As observed by a Division Bench of
Calcutta High Court in Sikha Singh v. Dina Chakrabarty, AIR 1982 Cal 370, the
Rule requiring joinder of the adulterer as a co-respondent proceeds on a public
policy to prevent collusion and character assassination."
The Karnataka High Court also considered the relevant provisions of Civil
Procedure Code about adding necessary party in the proceedings, and observed:
(7). BUT what if the Rules do not require the impleading of the alleged
adulterer as co-respondent, though named in the petition? In the absence of any
Rule, we have to fall back upon Rules 3, 5 and 10(2) of Order 1, CPC. Rule 3
provides that all persons against whom any right to relief in respect of or
arising out of the same act/s or transaction/s is alleged to exist, whether
jointly or severally or in the alternative, may be joined as defendants in a
suit. Rule 5 makes it clear that it shall not be necessary that every defendant
shall be interested as to all the relief claimed in any suit against them. Rule
10(2) inter alia provides that the Court may at any stage of the proceedings,
order that the name of any party improperly joined as defendant be struck out;
or order the addition of any person who ought to have been joined as defendant,
or whose presence before the Court may be necessary in order to enable the Court
effectively and completely to adjudicate upon and settle all the questions
involved in the suit.
(8). A plaintiff or petitioner is bound to implead all those who are necessary
parties. He is also entitled to or at liberty to implead in a suit all parties
who are proper parties. Though these terms are not defined in the Code, it is
well-settled that persons who ought to have been joined, that is persons in
whose absence no effective decree at all can be passed are necessary parties.
In other words those whose presence is absolutely necessary for the grant of the
reliefs claimed in a suit are necessary parties.
On the other hand all person whose presence before the Court is necessary to
enable it to effectually and completely adjudicate upon and settle all questions
involved in the suit are proper parties. In Anil Kumar Singh v. Shivnath
Mishra, (1995) 3 SCC 147: (1995 AIR SCW 1782), the Supreme Court stated that the
object of Order 1, Rule 10(2) CPC is to bring on record all persons who are
parties to the dispute relating to the subject matter so that the dispute may be
determined in their presence and at the same time without any protraction,
inconvenience, and to avoid multiplicity of proceedings. The Supreme Court
further held (Para 9 of AIR) "a person may be added as a party defendant to the
suit though no relief may be claimed against him/her provided her/her presence
is necessary for a complete and final decision on the question involved in the
suit."
(10). THERE can be no doubt that in a proceeding where the Court has to
decide whether the spouse of the petitioner had voluntary sexual intercourse
with another person, by adding such person (alleged adulterer) as a Respondent,
the Court would be in a better position to effectually and completely adjudicate
upon the controversy. Nor can it be said that in a proceeding under
S. 13(1)(i) of H.M. Act, when the spouse and alleged adulterer are impleaded as
respondents, the alleged adulterer is improperly joined as a Respondent.
Therefore the alleged adulterer will be a proper party to a proceeding under
S.13(1)(i) of H.M. Act.
The Family court and the learned single Judge merely concentrated on the fact no
relief was sought against the Second Respondent. They, therefore, considered
only whether the adulterer is a necessary party to a petition seeking divorce on
the ground of adultery, but completely ignored that the alleged adulterer is a
proper party.
We adopt these observations here being quite rational. Eventually we are unable
to accept the findings of the Court below to the effect that there is no need to
add the adulterer as party to the proceedings, he being a necessary and proper
party to the proceedings. We are unable to agree with the findings given in
GALI KONDAIAH's case (1 supra). Ultimately the verdict of the Court below is to
be set aside which results in the dismissal of the plea of the petitioner to
dissolve the marriage by a decree of divorce without going into the merits of
the evidence adduced.
18. In the result, the Family Court Appeal is allowed setting aside the order
of Court below and also dismissing the plea of the petitioner to dissolve the
marriage by a decree of divorce.
No costs.
_________________
ASHUTOSH MOHUNTA, J
_____________________
G. KRISHNA MOHAN REDDY, J
Date:12-09-2012
F.C.A.No.21 of 2009
12-09-2012
Smt. Ch. Padmavathi
Ch. Sai Babu.
Counsel for the petitioner: Sri P.V. Ramana
Counsel for Respondent: Sri G. Rama Gopal
<Gist:
>Head Note:
?Cases referred:
1. AIR 1988 AP 68
2. 2000(2) ALD 723 (DB)
3. AIR 1975 ALL. 94
4. AIR 2003 KARNATAKA 508
JUDGMENT: (per Hon'ble Sri Justice G.Krishna Mohan Reddy)
This appeal is preferred challenging order dated 24-01-2008 passed in
O.P.No.121 of 2005 (OP) on the file of the Judge, Family Court at Warangal
upholding the plea of the respondent/petitioner in the OP to dissolve marriage
between him and the appellant/respondent in the OP by a decree of divorce.
2. For the sake of convenience, we refer the parties hereinafter as they are
arrayed in the OP.
3. The OP was allowed in favour of the petitioner coming to the conclusion
that he could prove adultery between the respondent and one R. Narasimha Rao, a
Shunter in Railways, by reason of which it was also held that her cruelty
against the petitioner was also established consequently aggrieved by which the
present appeal has been preferred.
4. It is necessary to note briefly the claims or allegations made by the
petitioner and the respondent in the case for proper appreciation of the matter
respectively. Admittedly, the marriage of the petitioner and the respondent
took place on 26-05-1994. It is claimed by the petitioner that both of them
lived together for 10 years thereafter during which they begot two daughters
namely Varshini and Jyositha on 25-06-1995 and 17-11-1997 respectively. He
worked in Railways at several places. It is alleged by him that the respondent
was habituated to luxurious life, she used to harass him to meet her unlawful
demands in that context which were beyond his capacity and even though he
explained his plight and tried to convince her, she did not change or mend
herself. It is also alleged by him that she and her mother always harassed him
mentally and physically to give money for meeting her mother's debts. He
claims that because of their attitude, he was not able to discharge his duties,
whereas unable to cope up with the attitude of the respondent, he issued a legal
notice on 10-06-2003 mentioning various unpleasant incidents that occurred in
between them and also seeking her to cooperate with him for obtaining divorce in
between them, but she did not give any reply, however, at a belated stage, she
promised to mend herself which he believed, but she continued to behave as
before. It is alleged by him further that on 16-06-2006 at about 5-00 a.m. when
he returned home, he found her in compromising position with his colleague R.
Narasimha Rao, a Shunter in Railways, who fled away having seen him following
which he raised hue and cry, however on the other hand, she approached her
relatives namely Chander Rao, D. Seetha Ramaiah and Srinivas, who came to his
house on
19-06-2005 and who were appraised of the said incident, but those persons and
the respondent mercilessly beat him and caused bleeding injuries on his head, in
consequence of which he was admitted in Rohini Hospital, Hanmakonda followed by
giving a report in the police station at Subedari against the respondent, but no
action was taken by the police having been influenced by the respondent, as a
result of which he filed complaint on the file of the IV Additional Judicial
Magistrate of First Class, Warangal against her and others to prosecute them for
offences punishable under Sections 326, 420, 448, 497 and 506 read with 34 of
IPC which was forwarded to the police concerned for necessary investigation and
report, but again no action was taken by the police.
5. The plea of the respondent is total denial of the allegations made against
her. She claims that at the time of marriage, her parents gave Rs.1,40,000/- as
dowry and Rs.60,000/- as loan and her grandfather presented 17 soverins of gold
apart from giving household articles to the petitioner. She alleged that the
petitioner along with his mother and sister harassed her several ways narrating
several incidents. It is also according to her that the said R. Narasimha Rao,
a friend of the petitioner, used to come to their house which circumstance was
taken advantage of to create a false story of adultery.
6. For the petitioner, he got himself examined as PW-1 and got examined one
Qamarunnisa Begum as PW-2 and got marked Exs.A-1 to A-7. For the respondent,
she got herself examined as RW-1 and got marked Exs.B-1 to B-3.
7. Evidence was let in in accordance with the pleas taken in the petition and
counter. Whereas PW-1 deposed as per the averments made in the petition, PW-2
deposed as follows - she was the neighbour of the petitioner, on 16-06-2005 at
about
5-00 PM, the petitioner after attending to his job returned back, later she
found him raising hue and cry that his wife was not opening the doors of their
house even though he called her, then she got woke up and then found one person
running in front of her carrying clothes and rushing to the ground floor of the
house and also leaving the place. She also deposed that after the said person
went out of the house of the parties, the respondent opened the doors of their
house. She further deposed that she was informed that the said person was one
Narasimha Rao, a colleague of the petitioner, and on her enquiry, the petitioner
revealed that the respondent was leading adulterous life with that person.
She further deposed that she then went into the bedroom of the house of the
parties in the ground floor and found the petitioner raising hue and cry that he
would commit suicide expressing that he could not live with the respondent,
following which she (PW-2) requested him not to commit suicide and also
convinced him to see that the matter was settled amicably. She also deposed
that immediately the petitioner went out to inform the relatives of the
respondent about the incident.
8. The Court below mainly accepted the evidence of PW-2 on the ground that
there was no need for her to speak falsehood, while accepting the evidence of
PW-1 also. The Court below consequently held that the respondent was guilty of
cruelty against the petitioner also. The Court below observed that the
adulterer need not be added as a party in the OP following the decision reported
in GALI KONDAIAH v. GALI ANKAMMA 1, in which with regards to the same question
of impleading an adulterer, observed that Rule 8 of the Rules framed under the
Hindu Marriage Act which provides "where a husband's petition alleges adultery
on the part of the respondent, the alleged adulterer shall, if he is living, be
made a co-respondent in the petition.", was not applicable because it was
enacted prior to the amendment of Section 13 of the Act by reason of which
provision (Section 13) even a stray incident of sexual intercourse between one
of the spouses with any other person would come under the purview of that
provision for granting divorce in favour of the other spouse. As found in the
discussion made in the impugned order, learned Advocate for the respondent
relied upon a decision reported in MIRAPALA VENKATA RAMANA v. MIRAPALA PEDDIRAJU
2 to assert that without adding the adulterer, he being a necessary party, the
petition should not be entertained, but it appears that that decision was not at
all considered by the Court below.
9. Learned counsel for the respondent likewise would contend that when
there is a plea of adultery, the adulterer is a necessary party whereby non-
adding of him as a party is fatal to proceed with the case. On the other hand
learned counsel for the petitioner would contend that in view of the amendment
of Section 13(1(i), the adulterer need not be added as a party in the case.
10. Therefore, it is to be deliberated about the question of adding the
so-called adulterer as a party to the petition as a condition precedent to
entertain the matter in the light of various circumstances enumerated and also
consequently how far the verdict of the Court below is sustainable.
11. In MIRAPALA VENKATA RAMANA's case (2 supra), this Court, having
examined similar question of adding of an adulterer with reference to necessary
pleadings and evidence adduced, held that in a case of divorce basing on
adultery, the alleged adulterer being a necessary party, ought to have been made
as the second respondent in the case, but the petitioner-husband failed to
implead him by reason of which, the O.P. was bad for non-joinder of necessary
party having been fortified by a judgment of Allahabad High Court in UDAI NARAIN
BAJPAI v. SMT. KUSUM BAJPAI 3, wherein it was held as follows:
"Learned Counsel for the respondent also placed reliance on the decision in AIR
1942 ALL. 223 (supra) for the purpose of contending that till such time as the
appellant's application for amendment of his petition by addition of the alleged
adulterers as co-respondents was allowed and the petition was amended
accordingly, it was not in accordance with law and not maintainable. It was
urged that till the co-respondents were impleaded it was not open to the Court
either to frame issues in the petition or admit evidence on issue No.5 and
consequently the framing of the issues by the trial Court as well as the finding
on issue No.5 are without jurisdiction. There is force in this contention which
must be accepted."
There was no specific discussion in that decision of this Court with regards to
the question of application of Rule 8 of the Rules which was enacted prior to
the amendment of Section 13 of the Act. This poses a question as to whether
the decision rendered in MIRAPALA VENKATA RAMANA's case (2 supra) can be held to
be applicable here by virtue of the said Rule.
12. It is to be very much reckoned with what is contained in Rule 8
which reads as follows:
"Co-respondent-(1) Where a husband's petition alleges adultery on the part of
respondent, the alleged adulterer shall if he is living be made a co-respondent
in the petition:
Provided, however, that in case the adulterer's name, identity or whereabouts
are unknown to the petitioner inspite of reasonable inquiries made and the Court
is satisfied that it is just and expedient so to do, it shall, on the
application of the petitioner, dispense with the naming of the co-respondent.
(2) In every petition under Sec. 13(2) of the Act the petitioner shall make
'the other wife' mentioned in that Section a co-respondent.
(3) In every petition under Sec.11 of the Act, on the ground, that the
condition in Sec. 5(i) is contravened, the petitioner shall make the spouse,
alleged to be living at the time of the marriage, a co-respondent."
The first clause is relevant here. There is no express provision by which
this provision has been deleted. Significantly this provision in clear terms
enjoins that where a husband's petition alleges adultery on the part of the
respondent, the alleged adulterer shall if he is living be made a co-respondent
in the petition subject to the proviso incorporated thereunder, but this proviso
is not applicable here because it is not the case of the parties that the
identity of the alleged adulterer has not been known to the petitioner. If this
Rule is to be enforced, definitely the alleged adulterer should be made as the
co-respondent in the petition for the effective disposal of the case. This
depends upon whether by virtue of the enactment of the amended provision of
Section 13(1)(i), the same provision became redundant. On the other hand, the
amended provision of Section 13(1(i) of the Act reads as follows:
"Divorce.
(1) Any marriage solemnized, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party-
(i) has after the solemnization of the marriage had voluntarily sexual
intercourse with any person other than his or her spouse."
13. A petition under Section 13(1(i) therefore involves an allegation of
voluntary sexual intercourse by the spouse with a
3rd party. The amendment does not disqualify the Rule in specific terms. In
other words the amendment does not have any bearing upon the enforcement of the
Rule, thus it continues to be in force. Definitely by virtue of the amendment,
the provision was liberalized as it only enjoins now that if one of the spouses
had voluntary sexual intercourse with any person other than his or her spouse,
that is a ground for dissolving the marriage between the spouses by a decree of
divorce. This leads to consider what is meant by adultery in the present
context.
14. The first part of Section 497 of IPC defines what is meant by adultery. It
contemplates "whoever has sexual intercourse with a person who is and whom he
knows or has reason to believe to be the wife of another man, without the
consent or connivance of that man, such sexual intercourse not amount to the
offence of rape, is guilty of the offence of adultery". This provision makes it
very clear that even a single incident of sexual intercourse with a person who
is and whom he knows or has reason to believe to be the wife of another person,
without the consent or connivance of that other person, amounts to adultery
which comes within the ambit of Section 13(1(i) of the Act in the context of
proceeding against the wife for divorce. Thereby there is no need of one of the
spouses living in adultery continuously to attract Section 13(1)(i) of the Act.
15. In the context of adding the alleged adulterer as a party in the divorce
O.P., what is required to be considered is as to whether any alleged finding of
adultery would adversely affect the interest of the adulterer by reason of which
an opportunity should be provided to him to defend himself to disprove the claim
of adultery applying the concept of the principles of natural justice.
This analogy is to be applied irrespective of enacting a Rule of Law for adding
him as a party to the divorce proceedings. As a matter of fact his presence in
the proceedings helps better to effectively and completely adjudicate the
controversy and also safeguard his interest.
16. In ARUN KUMAR AGARWAL v. RADHA ARUN 4, a Division Bench of Karnataka High
Court observed similarly under similar circumstances as follows:
"Where such adulterer is named in the petition and evidence is let in to show
that the spouse had intercourse with such person, the Court will have to record
a finding that the spouse had a voluntary sexual intercourse with such named
person. There is no
gain-saying that such a finding/decision will adversely affect the reputation of
the person who is alleged to have committed the adulterous act. Public interest
and principles of natural justice require that the person concerned should have
an opportunity to defend his reputation before such a finding is recorded. It
is precisely for this reason that Rules framed by several High Courts
(Allahabad, Andhra Pradesh, Mumbai, Delhi, Gujarat, Himachal Pradesh, Kerala,
Chennai, Orissa, Patna, Punjab and Rajasthan) specifically require that the
alleged adulterer should be impleaded as a co-respondent in a petition under
S.13(1)(i) of Hindu Marriage Act, even though no relief may be claimed against
him. We strongly commend amendment of the Hindu Marriage (Karnataka) Rules,
1956, to introduce such a provision. As observed by a Division Bench of
Calcutta High Court in Sikha Singh v. Dina Chakrabarty, AIR 1982 Cal 370, the
Rule requiring joinder of the adulterer as a co-respondent proceeds on a public
policy to prevent collusion and character assassination."
The Karnataka High Court also considered the relevant provisions of Civil
Procedure Code about adding necessary party in the proceedings, and observed:
(7). BUT what if the Rules do not require the impleading of the alleged
adulterer as co-respondent, though named in the petition? In the absence of any
Rule, we have to fall back upon Rules 3, 5 and 10(2) of Order 1, CPC. Rule 3
provides that all persons against whom any right to relief in respect of or
arising out of the same act/s or transaction/s is alleged to exist, whether
jointly or severally or in the alternative, may be joined as defendants in a
suit. Rule 5 makes it clear that it shall not be necessary that every defendant
shall be interested as to all the relief claimed in any suit against them. Rule
10(2) inter alia provides that the Court may at any stage of the proceedings,
order that the name of any party improperly joined as defendant be struck out;
or order the addition of any person who ought to have been joined as defendant,
or whose presence before the Court may be necessary in order to enable the Court
effectively and completely to adjudicate upon and settle all the questions
involved in the suit.
(8). A plaintiff or petitioner is bound to implead all those who are necessary
parties. He is also entitled to or at liberty to implead in a suit all parties
who are proper parties. Though these terms are not defined in the Code, it is
well-settled that persons who ought to have been joined, that is persons in
whose absence no effective decree at all can be passed are necessary parties.
In other words those whose presence is absolutely necessary for the grant of the
reliefs claimed in a suit are necessary parties.
On the other hand all person whose presence before the Court is necessary to
enable it to effectually and completely adjudicate upon and settle all questions
involved in the suit are proper parties. In Anil Kumar Singh v. Shivnath
Mishra, (1995) 3 SCC 147: (1995 AIR SCW 1782), the Supreme Court stated that the
object of Order 1, Rule 10(2) CPC is to bring on record all persons who are
parties to the dispute relating to the subject matter so that the dispute may be
determined in their presence and at the same time without any protraction,
inconvenience, and to avoid multiplicity of proceedings. The Supreme Court
further held (Para 9 of AIR) "a person may be added as a party defendant to the
suit though no relief may be claimed against him/her provided her/her presence
is necessary for a complete and final decision on the question involved in the
suit."
(10). THERE can be no doubt that in a proceeding where the Court has to
decide whether the spouse of the petitioner had voluntary sexual intercourse
with another person, by adding such person (alleged adulterer) as a Respondent,
the Court would be in a better position to effectually and completely adjudicate
upon the controversy. Nor can it be said that in a proceeding under
S. 13(1)(i) of H.M. Act, when the spouse and alleged adulterer are impleaded as
respondents, the alleged adulterer is improperly joined as a Respondent.
Therefore the alleged adulterer will be a proper party to a proceeding under
S.13(1)(i) of H.M. Act.
The Family court and the learned single Judge merely concentrated on the fact no
relief was sought against the Second Respondent. They, therefore, considered
only whether the adulterer is a necessary party to a petition seeking divorce on
the ground of adultery, but completely ignored that the alleged adulterer is a
proper party.
We adopt these observations here being quite rational. Eventually we are unable
to accept the findings of the Court below to the effect that there is no need to
add the adulterer as party to the proceedings, he being a necessary and proper
party to the proceedings. We are unable to agree with the findings given in
GALI KONDAIAH's case (1 supra). Ultimately the verdict of the Court below is to
be set aside which results in the dismissal of the plea of the petitioner to
dissolve the marriage by a decree of divorce without going into the merits of
the evidence adduced.
18. In the result, the Family Court Appeal is allowed setting aside the order
of Court below and also dismissing the plea of the petitioner to dissolve the
marriage by a decree of divorce.
No costs.
_________________
ASHUTOSH MOHUNTA, J
_____________________
G. KRISHNA MOHAN REDDY, J
Date:12-09-2012
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