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2003 DIGILAW 115 (UTT)

V. K. Gupta v. Principal Judge, Family Court

2003-07-31

P.C.VERMA

body2003
JUDGMENT P.C. Verma, A.C.J. 1. By this petition the petitioner made a prayer to have the orders dated 5.7.2002 and 31.7.2002, passed by respondent No. 1 in O.S. No. 33/ 2002 quahsed. 2. The petition under Section 13 of the Hindu Marriage Act, 1956 seeking divorce was preferred by the petitioner. The same was being contested by wife-respondent No. 2 who, during hearing of the case made allegation that the petitioner-husband had been keeping with him another lady as his wife and whose named was also disclosed to the Principal Judge, Family Court. Learned Judge took cognizance of the allegation and as is evident from the copy of the order-sheet of the said case, issued a commission to physically verify the presence of that lady, named as Mamta Saxena, in the house of the petitioner. Positive report could not be received. By the impugned order dated 5.7.2002 the learned Principal Judge, Family Court, then passed an order to summon the said lady and subsequently on 31.7.2002 passed an order to the effect that the said lady be impleaded as a co-respondent in the case if the plea of petitioner living in adultery is being pressed by the respondent No. 2 within 10 days. 3. When the matter came up for hearing on earlier dates before this Court, the learned Counsels were asked to explore possibility of reconciliation between the parties. The parties were also directed to remain personally present in the Court and in compliance thereof both the petitioner-husband and the respondent No. 2-wife, put in personal appearance. In the presence of their Counsel we made efforts so that the dispute may be settled amicably between them but efforts of reconciliation did not yield favourable results. However, considering the legal aspect of the matter the learned Principal Judge could not have directed presence of the alleged mistress in the Court proceedings and also she could not have been impleaded as a co-respondent in a petition for dissolution of marriage preferred by the husband. The respondent No. 2 may, however, resort to legal action in the matter and may file proper F.I.R. or complaint seeking prosecution of the petitioner-husband for offence of adultery or marrying again in the lifetime of the wife. The respondent No. 2 may, however, resort to legal action in the matter and may file proper F.I.R. or complaint seeking prosecution of the petitioner-husband for offence of adultery or marrying again in the lifetime of the wife. As the things stand, both the impugned orders passed by the learned Principal Judge cannot legally be sustained and, therefore, the petition is fit to be allowed for the relief claimed in the petition. 4. While parting with the judgment it need to be point out that the learned Principal Judge shall proceed with the pending petition according to law and if expenses of the litigation and interim maintenance has not been awarded to the wife-respondent No. 2, the proceedings shall be drawn in that regard also before further proceeding with the main petition under Section 13 of the Hindu Marriage Act. 5. The petition is allowed and the impugned orders dated 5.7.2002 and 31.7.2002 are set aside.