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2001 DIGILAW 682 (KAR)

Arun Kumar Agarwal v. Radha Arun

2001-08-31

R.GURURAJAN

body2001
ORDER R. Gururajan, J.—The Petitioner-husband is challenging an order dated 4.4.2001 passed on IA-IV in MC No. 521 of 2000 by the II Additional Principal Judge Family Court, Bangalore. 2. The Petitioner filed a petition seeking for a divorce at the hands of the Family Court on the ground of adultery by the 1st Respondent in the matter. He has arrayed the 2nd Respondent as a party to the proceedings before the Family Court. The 2nd Respondent filed an application under Order 1, Rule 10 of Code of Civil Procedure to strike out/delete his name from the petition. The same was opposed. After hearing, the learned Family Court Judge, in a detailed order, has allowed the IA, thereby a direction is issued to strike out/delete the name of the 2nd Respondent from the petition. This order is challenged in this petition. 3. Heard Sri A.Y.N. Guptha, learned Counsel appearing for the Petitioner. 4. Sri Guptha, learned Counsel emphatically argues before me that the learned Judge has committed an error in allowing the IA petition. He refers to Section 21 of the Hindu Marriage Act and Section 11 of the Indian Divorce Act. He further argues that the 2nd Respondent being an adulterer has necessarily to be made a party and no prejudice as such is caused in the matter. He refers to me the various rules framed by various High Courts in this regard. In conclusion, he wants this Court to set aside the order of the Family Court. 5. After hearing the learned Counsel for the Petitioner, I have carefully perused the impugned order. Admittedly, the impugned order is an order allowing the petition filed under Order 1, Rule 10 of Code of Civil Procedure. The Hindu Marriage Act is a Central Act providing for a dispute with regard to marriages amongst Hindus. It applies to all the Hindus in the matter of marriage. The Act applies: (a) to any person who is a Hindu by religion in any of its forms or developments, including a Vorashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. It applies to all the Hindus in the matter of marriage. The Act applies: (a) to any person who is a Hindu by religion in any of its forms or developments, including a Vorashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. (b) to any person who is a Buddhist, Jain or Sikh by religion, and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. The Act provides for restitution of conjugal rights in terms of Section 9 judicial separation in terms of Section 10, nullity of marriage and divorce and void marriages in terms of Section 11 and voidable marriages in terms of Section 12. The Act further provides for divorce in terms of Section 13 of the Act. It takes care of all marital problems arising for Hindus. The Hindu Marriage Act provides for a petition being filed under Section 19 of the Act. Section 20 of the Act provides for contents and verification of the petition. Section 21 provides for application of Code of Civil Procedure. The said Section reads as under: Section 21. Application of Act 5 of 1908.-Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. 6. A careful reading of the said Section would show that subject to the rules as the High Court may make on its behalf, the proceedings are regulated by Code of Civil Procedure. In the case on hand, rules have been framed in excise of powers conferred by Sections 14 and 21 of the Hindu Marriage Act by the Karnataka High Court. The said rules provide for form of proceedings, Interlocutory application, cause title, contents of petition, copies for service with process, leave to present a petition before expiration of three years, notice of petition, custody of children, costs and pleader's fee and security for costs. The said rules provide for form of proceedings, Interlocutory application, cause title, contents of petition, copies for service with process, leave to present a petition before expiration of three years, notice of petition, custody of children, costs and pleader's fee and security for costs. There is no specific rule available in the State of Karnataka in terms of these rules enabling a party to make an adulteror as a co-Respondent in a petition filed before the District Judge in the matter of divorce. The learned Judge of the Family Court, after noticing Section 21 and the non-availability of the rules in the case on hand, has followed the principles in terms of Code of Civil Procedure and has allowed the application. Admittedly, in the case on hand, no relief as such is claimed against the adulterer namely the 2nd Respondent. In that view of the matter, the learned Judge, in my opinion, has rightly ruled that he is not a necessary party to the proceedings. No exception could be taken to the said findings of the Judge. 7. However, I notice that most of the High Courts in this Country have framed rules providing for arraying adulterer as a co-Respondent. 8. The Allahabad High Court Rules provide for the adulterer or adulteress as a co-Respondent to the petition in terms of Rule 6 of the Rules. The Andhra Pradesh High Court Rules provide for making an adulterer a co-Respondent in terms of Rule 8 of the Rules. The Bombay High Court Rules again provide for a Petitioner making an adulterer as a co-Respondent. However, leave to dispense is available under certain circumstances. The Delhi High Court in terms of Rule 12 provides for the adulterer or adulteress being made as a co-Respondent in the matter. However, dispensation is permissible under the said rules. The Gauhati High Court Rules also provide for the adulterer being made a party in terms of Rule 5. Similarly, the Himachal Pradesh High Court Rules also provide for adulterer/adulteress as a co-Respondent. Dispensation is also permissible under Rule 7. The Kerala High Court Rules also provide for the adulterer being made a party in the event of the Respondent living in adultery or has, after the solemnization of the marriage; had sexual intercourse with any person. The Madras High Court Rules also provide for impleading an additional co-Respondent. Dispensation is also permissible under Rule 7. The Kerala High Court Rules also provide for the adulterer being made a party in the event of the Respondent living in adultery or has, after the solemnization of the marriage; had sexual intercourse with any person. The Madras High Court Rules also provide for impleading an additional co-Respondent. The Orissa High Court Rules again provides for adulterer being made as a party in terms of Rule 5. The Patna High Court Rules provide for an adulterer being made as a party to the proceedings. Similarly, the Punjab High Court Rules provide for adulterer being impleaded as a party under Rule 10, on the ground of adultery. It also provides for paying costs by the adulterer in the event of an establishment of an adultery. The Rajasthan High Court has also framed rules providing for an adulterer being made as a co-Respondent and also costs. 9. From the narration of the facts referred to above various High Courts in excise of powers conferred on High Court in terms of Section 14 and Section 21, have thought fit to make an adulterer/adulteress as a co-Respondent subject to dispensation by the Court. No such rules, unfortunately, has been framed in Karnataka. Therefore, the learned Judge cannot be found fault for allowing the IA filed by the 2nd Respondent. However, I deem it proper to suggest that the Karnataka High Court may also fall in line with all other High Courts in framing a specific rule by way of impleading the adulterer/adulteress, as in the case of other High Courts. Dispensation may also be provided, as being made in other High Courts. This is necessary for the purpose of providing a remedy in the event of adultery in a matter. It cannot but be observed that the relationship between the husband and wife is purely personal in character and any suspicion in the event of an act of adultery is sufficient to create dis-harmony in their happy marital life. The Act specifically has made adultery as a ground for divorce. Adultery can be proved successfully in the event of the adulterer/adulteress being a party to the proceedings. The party complaining of about adultery would be able to place before the Court, the truth in the matter. The Act specifically has made adultery as a ground for divorce. Adultery can be proved successfully in the event of the adulterer/adulteress being a party to the proceedings. The party complaining of about adultery would be able to place before the Court, the truth in the matter. Probably it is for this reason that all other High Courts have chosen to provide for impleading the adulterer/adulteress as a co-Respondent to the proceedings. Therefore, I am strongly of the view that this Court also must take steps in the matter of providing a provision for impleading the adulterer/adulteress, subject of course the dispensation as is in other High Court Rules. So far as this case is concerned, the parties are bound by the rules as exists as on today. No rule is framed providing for inclusion of the adulteress as a party. Therefore, nothing can be done in the case on hand. 10. The Counsel also refers to me the Indian Divorce Act and in particular Section 11 of the Act. This argument requires to be rejected since admittedly the parties are not governed by the Indian Divorce Act. When parties to the proceedings are governed by a particular Statute that Statute alone has to govern the proceedings and not some other Statute, which is wholly foreign to the proceedings. Therefore, this argument is required to be noticed for rejecting the same. The Counsel for the 2nd Respondent has referred to several Judgments before the Family Court touching upon the relief in his favour. The Court, in the absence of any relief against the 2nd Respondent has rightly, after taking note of the decisions, allowed the petition. Taking an overall view of the matter including the provisions governing these proceedings, I am unable to provide any relief to the Petitioner in the case on hand. 11. In the result, this petition stands rejected. 12. However, I deem it proper to direct the Office to send a copy of this order to the Rules making body of the High Court for appropriate needful action in the matter.