Devinder Gupta ( 1 ) THE orders passed on 2. 12. 1993 and 6. 12. 1993 byshri J. D. Kapoor, Additional District Judge, Delhi in Hindu Marriage Case No. 181/90 are under challenge in this petition filed under Article 227 of the Constitutionof India at the behest of the wife who is a respondent in the petition for grant of adecree for divorce preferred by the husband, pending in the Court below. ( 2 ) ON 26. 2. 1990 a petition for dissolution of marriage by a decree of divorceunder Section 13 of the Hindu Marriage Act, 1955 (Hereinafter referred to as theact ) was preferred by the husband on the ground that the wife after the solemnisation of marriage had voluntarily sexual intercourse with persons other than herspouse; that after solemnisation of marriage the wife treated the husband withcruelty; and that the wife has deserted the husband for a continuous period of notless than 2 years immediately preceding the date of presentation of the petition. On7. 1. 1991 the wife filed her reply. Replication thereto was filed by the husband on28. 5. 1991. On 29. 7. 1991 the following issues were framed:1. Whether this Court has no territorial jurisdiction? OPR2. Whether the petitioner was treated with cruelty by the respondent?opp3. Whether the respondent had after the solemnisation of marriage volutarily sexual intercourse with persons other than her spouse, i. e. , thepetitioner? If so, its effect. OPP4. Relief. The Presiding Officer while framing of issues recorded no other issue arises or isprayed . ( 3 ) THE husband opened his evidence on 1. 12. 1993. On 2. 12. 1993 the Courtobserved that there was some confusion about the issues framed on the basis of thepleadings. One of the issues framed was as regards the husband s allegation thatthe wife had voluntarily sexual intercourse after mariage with persons other thanher spouse. It amounted to taking up the ground of adultery. It was furtherobserved that irrespective of the allegations the stand taken by the husband wasthat he is not seeking dissolution of marriage on the ground of adultery but the actsalleged in the petition amounted to cruelty. In view of this the Court suo motureformulated the issues. The order passed on 2. 12. 1993 reads:"2. 12. 93p: Parties with Counsel. It was furtherobserved that irrespective of the allegations the stand taken by the husband wasthat he is not seeking dissolution of marriage on the ground of adultery but the actsalleged in the petition amounted to cruelty. In view of this the Court suo motureformulated the issues. The order passed on 2. 12. 1993 reads:"2. 12. 93p: Parties with Counsel. Since there is confusion about the issues framed on the basis of pleadings ofparties, as one of the issues framed was with regard to allegation made by thepetitioner of the respondent having voluntary intercourse after marriage withpersons other than her spouse i. e. the petitioner. Counsel for respondent contendsthat this issue tantamounts to ground of adultery, whereas the Counsel forpetitioner states that he is not seeking dissolution of marriage on the ground ofadultery but these acts amount to mental cruelty. In order to obviate the legalobjection as. well to make the position clear regarding the grounds for dissolutionof marriage, the issues are re-formulated as under:- 1. Whether this Court has no territorial jurisdiction? OPR2. Whether the petitioner was treated with cruelty by the respondent?opp3. Whether the petitioner has been deserted by the respdt, for acontinuous period of more than two years preceding the filing of petition? OFF4. Relief. Since the examination-in-chief of the petitioner is in the midst, so thereis no necessity for re-examination of the petitioner after re-formulationof issues. Let his examination be continued. Sd/-ADJ"on the same day further statement of the husband was recorded. Cross-examination was deferred for 6. 12. 1993 on which date an application was made onbehalf of the wife seeking directions of the Court for deleting certain portions of thepetition on the ground that the allegations being scandalous, frivolous, vexatiousand unnecessary, the same be ordered to be deleted. Another application was madefor deletion of issue No. 3, as framed on 2. 12. 1993. Both the applications weredismissed on the same day. These orders are now under challenge. ( 4 ) 1 have heard the learned Counsel for the parties who have taken me throughthe entire pleadings also. ( 5 ) IT is contended that since the husband had given up the ground of adulteryand no issue on the ground of desertion had been claimed when issues were framedon 29. 7. 1991, impugned orders are liable to be quashed. ( 5 ) IT is contended that since the husband had given up the ground of adulteryand no issue on the ground of desertion had been claimed when issues were framedon 29. 7. 1991, impugned orders are liable to be quashed. After the husband hadmade a statement that he was not seeking decree of divorce on the ground ofadultery, allowing the petition to stand as it is would have the effect of the husbandbeing permitting to continue asserting the same allegations for a different ground. It will amount to causing serious prejudice to the wife and embarass the fair trial. On behalf of the husband it is contended that the husband is not seeking divorce onthe ground that the wife had after the solemnisation of marriage voluntaryintercourse with persons other than the husband but the same allegations can bemade use of by the husband for pressing the other ground which survives forconsideration, namely, ground of cruelty. The fact that the Court while framingissues observed that no other issue arises or claimed does not amount to thehusband giving up the ground of desertion and cannot be a bar in the Court suomotu framing the issues. The issues were reformulated by the Court on the basis ofthe pleadings of the parties. The order was within the Court s jurisdiction and thepower of superintendance under Article 227 cannot be invoked. Otherwise also theimpugned orders being interim in nature, no interference is called for under Article227 of the Constitution of India. Provisions of Order 6 Rule 16 of the Code of Civilprocedure will not apply to the facts and circumstances of the case. ( 6 ) IT is not in dispute that the Rules framed governing the trial of proceedingsunder the Act, provide that in every petition for divorce on the ground that therespondent has committed adultery with any person, the petitioner "shall makesuch person a co-respondent. " It is also not in dispute that there is no other personimpleaded to the petition filed by the husband other than the wife. In the course ofhis statement while under cross-examination, the husband has stated: "i have withdrawn the ground of adultery involving the allegation of herhaving had voluntary sexual intercourse with other persons other than meafter marriage. "before the aforementioned statement in cross examination, on 2. 12. In the course ofhis statement while under cross-examination, the husband has stated: "i have withdrawn the ground of adultery involving the allegation of herhaving had voluntary sexual intercourse with other persons other than meafter marriage. "before the aforementioned statement in cross examination, on 2. 12. 1993 whenthe statement of husband was in progress, an objection was raised on behalf of thewife that the husband had pleaded that he was entitled to dissolution of marriageon the ground of adultery but had failed to implead the alleged adulterer as corespondent. On such an objection that in this background the ground of adulterywas not maintainable, a statement was made on behalf of the husband that he wasnot seeking divorce on the ground of adultery but the allegations made amountedto cruelty. It was on this objection on behalf of the wife and on the statement of thecounsel for the husband which gave rise to the passing of the order on 2. 12. 1993 bywhich the issue "whether the wife had after solemnisation of marriage voluntarilysexual intercourse with persons other than her spouse" was deleted. No objectionwas raised on behalf of the husband for deletion of that issue. ( 7 ) IN view of the above the question that arises is to whether in a petition whendivorce is not sought either on the ground of adultery or on. the ground of therespondent having had sexual intercourse with persons other than the spouse aftersolemnisation of marriage, the same can be allowed to be tried without directingthe deletion of those paragraphs of the petition which contain allegations ofadultery or the respondent having sexual intercourse with persons other than his/her spouse. The submissions made on behalf of the husband that the sameallegations also amount to the wife treating the husband with cruelty and can beallowed to be retained and proved on record in support of the issue of cruelty. It iscontended on behalf of the wife that permitting such allegations to be retained onrecord and allowing the husband to lead evidence thereupon will not onlyembarass the fair trial of the proceedings but would also amount permitting theproof of a fact indirectly which cannot be permitted to be done directly. Allegationsotherwise are scandalous and are liable to be deleted for a fair trial. ( 8 ) THE manner and the context in which the offending allegations have beenmade in the petition deserves to be noticed. Allegationsotherwise are scandalous and are liable to be deleted for a fair trial. ( 8 ) THE manner and the context in which the offending allegations have beenmade in the petition deserves to be noticed. It has been alleged in para F:"that sometime in the middle of 1976 the petitioner was shocked when thewife of a common friend complained to the petitioner that the respondent washaving an affair with her husband. ""the petitioner was again shocked when the wife of a leading Japanesedentist informed the petitioner that the respondent was having an affair withher husband and wanted the petitioner to put a immediate stop to it. "in para G, the allegations are:"the petitioner had almost decided to separate from the respondent becauseof her cruel acts and unchastity. . " "the respondent promised to mend her ways and be faithful to the petitioner. "in para J, it is alleged:"in the-night before the parties to the petition could sleep as the petitioner wasto leave for Japan by the early flight, at about 10. 30 PM there was a ring at thedoor and the petitioner discovered that a youngman had come to see therespondent. The youngman had come to stay with the respondent and oninquiry of the petitioner she explained that the youngman was only beinghelped by her in his studies. A litle later the mother of that youngmantelephoned and after having found that the youngman was staying in the house, the mother had blown a storm saying that the respondent has spoiledthe youngboy. "in para L the following allegations have been made: "l. That the petitioner was shocked when he came to know that the respondent was not continuing with. her studies of Hotel Management in England. He was further shocked to know that the respondent was having an affairwith a Britisher who was living with her. The respondent would not bring thedaughter to the apartment as she was carrying affair with the Britisher. " "that the petitioner further came to know that after her break with thebritisher the respondent was planning to ask for a divorce from the petitioneras she had become serious with some Indian who wanted to marry her. Thisextra marital relation with the Indian was discovered by the daughter of theparties and she was extremely hurt as the daughter loved the petitioner a lotand did not want that there should be separation between the parties. Thisextra marital relation with the Indian was discovered by the daughter of theparties and she was extremely hurt as the daughter loved the petitioner a lotand did not want that there should be separation between the parties. ""that as the petitioner was in very bad financial state and after having learntthe unchaste life which was being lived by the respondent, the petitionerreduced the amount of money which was being sent by him to the respondentin England. "para M states;"that the petitioner further discovered that the respondent was having a gaylife in Delhi. She was never at home, coming back very late night from theparties and was involved with her another Indian friend who had lived inamerica and married to an American lady. "in para 0 the allegations are:"in fact Nagisa had objected to the affairs of the respondent with her Indianfriend and staying with him. "in paras R and S the husband has alleged that the respondent is having illicitrelations and affairs with different people "as stated above and has refused toperform her marital duty". . . "from the facts stated hereinabove it is quiteclear that the respondent had sexual intercourse with persons other than herspouse after solemnisation of the marriage. " ( 9 ) IN spite of the fact that a clear statement was made by the husband duringhis cross-examination and in spite of the fact that the second issue as initiallyframed was given up, still a resistence is being shown on behalf of the husband thatthe aforementioned allegations cannot be ordered to be deleted from the pleadingssince the same very allegations can be used by the husband in claiming divorce onthe ground of cruelty since these allegations also amount to the wife treating thehusband with cruelty. I am afraid that such a submission cannot be accepter. Theact which cannot be done directly cannot be allowed to be done indirectly. Allowing the husband to have these allegations retained in the petition wouldamount to allowing him to press these allegations on which the Court will beobliged to give findings. In other words. Court will be obliged to record findingson the question that whether in view of the averments made in the petition,husband s stand that the wife had sexual intercourse with persons other, than thehusband after the solemnisation of the marriage stands proved and whether suchan act on the part of the wife amounts to cruelty or not. In other words. Court will be obliged to record findingson the question that whether in view of the averments made in the petition,husband s stand that the wife had sexual intercourse with persons other, than thehusband after the solemnisation of the marriage stands proved and whether suchan act on the part of the wife amounts to cruelty or not. It will amount to returninga finding on such of the facts which make out an independent ground for. divorceunder Section 13 of the Act. Under Section 13, expression adultery has not beenused. Instead the expression used in clause (i) of Sub-section (1) of Section 13 is "hadvoluntarily sexual intercourse with any person other than his/her spouse". Adultery in matrimonial law is one of principal grounds of relief and has been definedas a consensual sexual intercourse between a married person and another personof opposite sex during the subsistence of marriage. When adultery is aseparateground other than cruelty and divorce is not sought on the ground of adultery andallegations to that effect are given up, there is no reason why such allegationsdeserve to be allowed to be retained in the petition or allowed to be proved. Thesame in view of the statement of the husband must be ordered to be deleted. ( 10 ) SECTION 21 of the Act provides that except as is otherwise provided, allmatters of procedure under the Act are to be regulated by the Code of Civilprocedure. In matters relating to which there is no provision made in the Act andare not regulated by the Rules made by the High Court, the procedure to befollowed under the Act in all proceedings must be regulated, as far as may be, bythe Code of Civil Procedure. Sub-section (1) of Section 20 of the Act requires apetition for relief under the Act to distinctly set out the nature of the case and thefacts on which claim to the relief is founded. Claim in the husband s petition for therelief of divorce now after he has given up the ground of adultery is the allegationof cruelty. Any allegation which would amount to adultery cannot be allowed to beretained in the petition. Claim in the husband s petition for therelief of divorce now after he has given up the ground of adultery is the allegationof cruelty. Any allegation which would amount to adultery cannot be allowed to beretained in the petition. In the absence of any Rule in the Rules framed by the Highcourt to the contrary provisions of Order 6 Rule 16 of the Code will definitely applywhich says:"the Court may at any stage of the proceedings order to be struck out oramended any matter in any pleading - (a) which may be unnecessary, scandalous, frivolous or vexatious, or214 (b) which may tend to prejudice, embarrass or delay the fair trial of thesuit, or (e) which is otherwise an abuse of the proces of the Court. "court has ample power to order the striking out of pleadings which may beunnecessary or which may tend to prejudice, embarrass or delay the fair trial of a suit. After the husband has given up the ground or in that behalf the allegations ofadultery, allowing the same now to remain a part of pleadings, more especially inthe absence of the alleged adulterers being a party will definitely tend to prejudicethe fair trial of the petition which will have to be tried on the basis of allegationswhich may amount to cruelty whether physical or mental. The allegations asnoticed above are not only unnecessary but might tend to prejudice and also delaythe fair trial of the proceedings. ( 11 ) ON the second question of deletion of the issue as regards desertion,needless to add that no grievance was made on behalf of the husband when petitionwas not taken to trial on that ground. Issues were framed on 29. 7. 1991 in thepresence of Counsel for the parties and the Court clearly recorded that no other issue has been claimed. Issue on the plea of desertion was not framed. It willamount the husband voluntary giving up the plea of the wife having deserted him. There was also no prayer made by the husband for framing such an issue. Court inthese circumstances ought not to have suo motu framed an issue on desertion. Issue on the plea of desertion was not framed. It willamount the husband voluntary giving up the plea of the wife having deserted him. There was also no prayer made by the husband for framing such an issue. Court inthese circumstances ought not to have suo motu framed an issue on desertion. Irrespective of the fact that no express statement was made on the date when issueswere initially framed but the very fact that the Court recorded that no further issueis claimed and for more than two years thereafter no grievance was made on behalfof the husband it will amount to the husband voluntarily giving up the ground ofdesertion also. ( 12 ) THE argument that jurisdiction under Article 227 of the Constitution ofindia ought not to be exercised in the facts and circumstances cannot be accepted. No doubt as a matter of course power of superintendence ought not to be exercisedfor setting aside interim orders but powers are wide enough and can always beexercised to advance the cause of justice when glaring irregularities flagrant errorin procedure committed by the Courts came to the notice of the High Court. In theinstant case, the Court failed to take notice of the vital aspects of the case and theorders, if allowed to remain, will not only cause embarrassment to the wife in a fairtrial against her, more especially after the husband had given up and withdrawnsuch allegations on which such plea of adultery was raised. Orders if allowed tostand will result in manifest justice. ( 13 ) IN view of the above, petition is allowed. The impugned orders arequashed and set aside. The petition will now be tried on the following issues:1. Whether the Court has no territorial jurisdiction? OPR2. Whether the petitioner was treated with cruelty by the respondent? OFF3. Relief. The allegations in the petition which amount to the husband alleging adultery, more especially the ones quoted above are ordered to be deleted. The husbandis directed to suitably readjust the allegations for the ground on which petition isnow to be tried. Needful be done within a period of four weeks from today. CM (M) stands disposed of. Record be sent back forthwith. Parties to appear before the learned Additional District Judge on 24/04/1995.