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ARUN KUMAR AGARWAL Vs. RADHA ARUN & ANR.

Judgement

Court:KARNATAKA HIGH COURT

Bench: JUSTICE R.V. Raveendran & A.C. Kabbin

ARUN KUMAR AGARWAL Vs. RADHA ARUN & ANR. On 12 September 2003

Law Point:
Impleadment of adulterer as party : Though no relief claimed against adulterers, he is very much proper party. Absence of provision in Hindu Marriage (Karnataka) Rules, 1956 requiring alleged adulterer to be impleaded as co-respondent in proceedings. Recommendation of such provision into Karnataka made.

 

 

JUDGEMENT

 

The appellant and first respondent are respectively the husband and wife. The appellant filed M.C. No. 521 of 2000 before the Family Court, Bangalore under Section 13(l)(i) of the Hindu Marriage Act, 1955 praying that a decree for divorce against the first respondent with costs and such other reliefs the Court may deem fit in the circumstances of the case. He impleaded the alleged adulterer (second respondent herein) as second respondent in M.C. No. 521 of 2000.

2. Second respondent filed I.A. No. IV under Order 1 Rule 10(2) of the CPC to delete him from the petition. Second respondent contended that no relief has been sought against him. He also contended that the Hindu Marriage (Karnataka) Rules, 1956 do not contemplate or require that the alleged adulterer should be impleaded as a respondent in a proceedings under Section 13(1)(i) of the Hindu Marriage Act. Therefore, he submitted that he is neither a proper party nor a necessary party.

3. Appellant resisted the said application on the ground that the petition being one under Section 13(1)(i) for divorce, the adulterer is a necessary and proper party to the petition. The Family Court, by order dated 4.4.2001 allowed I.A. No. IV and directed the petitioner (appellant herein) to delete the second respondent. The Family Court held that appellant had not sought any relief against the second respondent and, therefore, he is neither a necessary nor a proper party to the proceedings.

4. Feeling aggrieved, appellant filed I (2002) DMC 84=W.P. No. 23138 of 2001 (GMFC), DD: 31.8.2001, Arun Kumar Agarwal v. Radha Arun and Another. The learned Single Judge dismissed the petition by order dated 31.8.2001. He noticed that several High Courts have framed rules under Sections 14 and 21 of the Hindu Marriage Act, requiring the adulterer to be made as a party to proceedings under Section 13(l)(i), that the Karnataka Rules do not contain such a provision and suggested that Karnataka High Court should also frame a specific rule for impleading adulterer as a party. He was of the view that in the absence of such a rule in Karnataka, an adulterer cannot be impleaded as a party, unless some relief was sought against him. Feeling aggrieved, appellant has filed this appeal. The question that, therefore, arises for consideration is 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.

5. The appellant who appears in person contends that in the absence of any rules, the question whether a person is a necessary or proper party will have to be decided with reference to the provisions of Rules 3, 5, 7 and 10 of Order 1 of the CPC. He submitted that the principles relating to impleading of parties make it clear that an adulterer is a proper, if not necessary party to a proceedings under Section 13(1)(i) of the Hindu Marriage Act. He submits that if there was a rule in the Hindu Marriage (Karnataka) Rules, 1956, requiring a petitioner in a petition under Section 13(1)(i) to implead an adulterer, then the adulterer would have been a necessary party; and in the absence of such a rule, the adulterer is a proper party and the petition has the option of either impleading or not impleading him. It is contended that once the petitioner chooses to implead as a co-respondent, the person who according to him is the adulterer, he being a proper party, cannot be deleted at the instance of such respondent, under Order 1 Rule 10(2) of the CPC.

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 voluntary sexual intercourse with such named person. There is no gainsaying 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 Others, 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.

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 of the 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 grant of the reliefs claimed in a suit are necessary parties. On the other hand all persons 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 @ Gadasa Guru, 1995 (3) SCC 147, the Supreme Court stated that the object of Order 1 Rule 10(2) of the 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:

“A person may be added as a party defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit.”

9. In Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886, the appellant filed a suit for a declaration of legal status as a married wife of third respondent and maintenance from him. Third respondent did not dispute that the appellant was married to him. Respondents 1 and 2, claiming to be the lawful wife and son of third respondent sought to be added as defendants under Order 1 Rule 10 of the CPC. The Supreme Court held that they were entitled to be impleaded though they were not necessary parties, that is parties “who ought to have been joined”. The Court held that in a suit relating to status/legal character, the rule that in order that a person may be added as a party, must have a present or direct interest in the subject-matter of suit, is not wholly applicable and the rule may be relaxed in a suitable case when the Court is of the view that by adding that party, it would be in a better position to effectually and completely adjudicate upon the controversy.

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(l)(i) of the Hindu Marriage 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 the Hindu Marriage 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.

12. In view of the above, this appeal is allowed as follows:

(i) The order of the learned Single Judge dated 31.8.2001 passed in Arun Kumar Agarwal’s case (supra), is set aside.

(ii) Arun Kumar Agarwal’s case (supra), is allowed and the order dated 4.4.2001 passed on I.A. No. IV by the Family Court, Bangalore in M.C. No. 521 of 2000 is set aside.

(iii) I.A. No. IV filed by the second respondent before the Family Court stands dismissed.

(iv) Having regard to the fact that the matter has been pending for several years and having regard to Section 21-B of the Hindu Marriage Act, 1955 the Family Court is requested to expedite hearing and disposal of M.C. No. 521 of 2000.

(v) Parties to bear their respective costs.

Appeal allowed.

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