It is to be pointed out, that in Arun Kumar Agarwal (supra), the Division Bench has held that the alleged adulterer is a proper party to a proceeding under Section 13(1) of the Hindu Marriage Act, 1955, though no relief is claimed against him and his presence is necessary for complete and final adjudication of the question involved in the case and such a person impleaded as a Co- respondent, cannot be held as improperly joined and cannot seek deletion from the petition.
A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. If a person is found to be a proper or necessary party, the Court has no jurisdiction to order the striking of such person from the array of parties.
Karnataka High Court
Lt Col Rajiv Shankar vs Soumya Nair on 14 August, 2014
Citation;AIR 2014 Karnat 167
This writ petition is directed against an order dated 06.11.2013 passed in MC.No.1305/2013 by the VI Additional Principal Judge, Family Court, Bangalore. MC.No.1305/2013 was filed by the petitioner, contending that he married respondent No.1, on 15.03.2012 and sometime during May-June 2012, he unearthed the gory details about the adulterous relationship of respondent No.1, had with respondent No.2. According to the petitioner, respondent No.1, who was about 16 weeks pregnant, deserted him and left along with respondent No.2, on the night of 05.08.2012, in pursuit of her adulterous relationship and later informed, that she is no longer interested in the marriage. Petitioner filed PCR No.21/2013, in the Court of X Additional Chief Metropolitan Magistrate, Mayo Hall, Bangalore, under Sections 497 and 498 of IPC, against respondent No.2 and subsequently filed MC.No.1305/2013, to pass a decree of divorce, on the ground of cruelty and adultery. Trial Judge having questioned the petitioner, whether the adulterer is required to be made a party in the divorce petition filed under the Hindu Marriage Act, 1955 (for short the 'Act'), as the Act does not contemplate making an adulterer one of the respondents, despite bringing to the notice of the Trial Judge, judgment passed in Arun Kumar Agarwal vs. Smt. Radha Arun and Another, ILR 2004 Kar 808, by arriving at the opinion, that impleading of the adulterer as respondent No.2 is not at all necessary and even if the adulterer is brought home by cogent evidence, the Court would not be passing any order against respondent No.2, though may be a proper party and cannot be treated as a necessary party, the trial Judge directed the deletion of respondent No.2 from the array of parties. Feeling aggrieved, this writ petition was preferred.
2. Sri Murthy Dayanand Naik, learned advocate, contended that M.C.No.1305/2013 having been filed to pass a decree of divorce, on the ground of adulterous relationship of respondent No.1 with respondent No.2, apart from other grounds, in the petition the adulterer was arrayed as respondent No.2, to enable the Court to effectually and completely adjudicate upon the controversy in question. He contended that the trial Judge has completely misread and misunderstood the principle of law laid down in the case of Arun Kumar Agarwal (supra). He submitted that the Trial Judge, in the impugned order has introduced something of her own, which is not at all appearing in the said Division Bench judgment. He further submitted that the case having been adjourned from 22.04.2013, on the pretext of passing the order, which was ultimately passed on 06.11.2013, after a gap of nearly seven months, shows that this Court should take note of the fact stated against the conduct of the trial Judge, in ground (g) of the writ petition i.e., in exercise of the supervisory jurisdiction under Article 227 of the Constitution and deal with the officer, appropriately.
3. Sri R.A. Devanand and Smt. Neetha, learned advocates, on the other hand submitted that no relief having been sought against respondent No.2, he being not a necessary party in the petition filed to grant decree of divorce, necessary parties being only the parties to the marriage, the Court below is justified in directing deletion of respondent No.2. Learned advocates submitted that in the circumstances of the case, no interference with the impugned order is called for.
4. In Arun Kumar Agarwal (supra), the appellant and first respondent were respectively the husband and wife. MC.No.521/2000 was filed in the Family Court, Bangalore, under Section 13(1)(i) of the Act, to pass a decree of divorce against the first respondent. 2nd respondent, impleaded as the alleged adulterer, filed IA.No.IV, under Order 1 Rule 10(2) of CPC, to delete him from the petition, by contending that no relief having been sought against him and the Hindu Marriage (Karnataka) Rules, 1956 not contemplating or requiring that the alleged adulterer should be impleaded as a respondent in a proceeding filed under Section 13(1)(i) of the Act, he being neither a proper party nor a necessary party. Family Court having allowed IA.No.IV and directed deletion of respondent No.2, WP.No.23138/2001 filed having been dismissed, W.A.No.5575/2001 was filed. The question raised for consideration was, "whether a person impleaded as a Co-respondent in a petition under Section 13(1)(i) of the Hindu Marriage Act, 1955, as alleged adulterer, can seek deletion on the ground that no relief is sought against him?"While answering the said question and allowing the appeal, it was held as follows:
"10. There can be no doubt that in a proceedings 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 Section 13(1)(i) of HM 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 proceedings under Section 13(1)(i) of HM 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.
11. It is true that no relief is claimed against the second respondent and having regard to the Hindu Marriage (Karnataka) Rules as they stand today, a decree against the first respondent can be passed under Section 13(1)(i) of the Hindu Marriage Act, on proof of voluntary sexual intercourse by the spouse with a third party. But he is very much a proper party."
5. It is to be pointed out, that in Arun Kumar Agarwal (supra), the Division Bench has held that the alleged adulterer is a proper party to a proceeding under Section 13(1) of the Hindu Marriage Act, 1955, though no relief is claimed against him and his presence is necessary for complete and final adjudication of the question involved in the case and such a person impleaded as a Co- respondent, cannot be held as improperly joined and cannot seek deletion from the petition.
6. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. If a person is found to be a proper or necessary party, the Court has no jurisdiction to order the striking of such person from the array of parties.
7. In the instant case, despite the Trial Judge finding that the 2nd respondent is a proper party, has committed illegality in directing the petitioner to delete respondent No.2 from the array of parties. The criticism of Sri Murthy Dayanand Naik, that the Trial Judge has completely misread and misunderstood the principle of law laid down by the Division Bench in Arun Kumar Agarwal, is well founded. There is clear elucidation of law therein. The decision in the case of Arun Kumar Agarwal (supra), sought to be put in the form of an extraction, in the impugned order, makes it apparent that the Trial Judge has not understood the principle of law laid down by the Division Bench, which squarely applies to the instant case.
8. By taking note of similar circumstance, in Arun Kumar Agarwal, it was held as follows:
"6. Section 13(1)(i) provides that 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 has, after solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. A petition under Section 13(1)(i) necessarily therefore involves an allegation of voluntary sexual intercourse by the spouse with a third party. 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 Section 13(1)(i) of the 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 and Ors., AIR 1982 SC 370, the Rule requiring joinder of the adulterer as a co-respondent proceeds on a public policy to prevent collusion and character assassination."
The trial Judge has completely misread the said decision and has given a meaning completely opposite to what has been said clearly and unambiguously therein.
9. Though, Karnataka High Court Hindu Marriage Rules, 1956, do not require the impleading of the alleged adulterer as a co-respondent, the Courts should keep in view Rules 3, 5 and 10(2) under Order 1 of CPC and also the decision in Arun Kumar Agarwal.
10. Since the petitioner has filed PCR.No.21/2013 against respondent No.2, as having adulterous relationship with respondent No.1 and the same allegations have been repeated in MC.No.1305/2013, his presence in MC.No.1305/2013 would enable the Court to effectually, completely adjudicate upon and settle all questions involved in the case and as such, he falls within the parameters of proper party. Such a person could be a co- respondent in the case, though no relief has been claimed against him. The principle of law laid down in the case of Arun Kumar Agarwal, squarely applies to the facts of the present case. Thus, the impugned order is illegal.
For the foregoing reasons, this petition is allowed and the impugned order is quashed. The Family Court is directed to decide the case with expedition.
No costs.
Sd/-
JUDGE ca
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