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2006 DIGILAW 6 (KER)

K. C. P. Mathew v. Mary

2006-01-02

V.RAMKUMAR

body2006
Judgment :- The petitioner in this writ petition filed under Art.227 of the Constitution of India is the husband of the 1st respondent herein. He filed O.P.340/2003 (Ext.P1) on the file of the Family Court, Manjeri under Sec.7(1)(a) of the Family Court’s Act, 1984 read with Sec.10 of the Indian Divorce Act, 1869 for a decree of divorce against the first respondent on the ground that the 1st respondent wife had committed adultery. During the pendency of the said petition, the petitioner herein filed I.A.397/2005 (Ext.P2) under O.I. R.10 C.P.C. for impleading two persons by name Moncy and Jaison as additional respondents 3 and 4 alleging that they are co-adulterors. The petitioner also filed I.A.No.398/2005 (Ext.P3) under O.I R.10(3) C.P.C. for amendment of the cause title of Ext.P1 O.P. to show the names of the aforesaid two persons as additional respondents 3 and 4. Both the above applications were opposed by the 1st respondent wife. The Family Court as per common order dt.11.4.0005 (Ext.P4) dismissed the said applications. It is the said common order which is assailed in this writ petition filed by the petitioner-husband. 2. I heard the learned counsel for the petitioner as well as the learned counsel appearing for the 1st respondent wife. 3. Assailing the impugned order the learned counsel for the petitioner made the following submissions before me:- The two persons who were sought to be impleaded as additional respondents 3 and 4 to the petition for divorce are a worker and relative by name Moncy and a neighbour by name Jaison. They are persons with whom the 1st respondent wife had been having adulterous intercourse and this fact has been specifically alleged in paragraph 12 of the Ext.P1 petition for divorce. But they were not arrayed as respondents to the petition on account of an inadvertent omission on the part of the petitioner. That was why the petitioner filed Exts.P2 and P3 applications. Sec.11 of the Indian Divorce Act, 1869 enjoins that in every petition for dissolution of marriage on the ground of adultery the petitioner shall make the alleged adulterer/adulteress a co-respondent, unless the petitioner is excused by the court from doing so on any of the three grounds enumerated thereunder. Sec.11 thus makes it obligatory on the husband to make the alleged adulterer a co-respondent unless he is excused as aforesaid. Sec.11 thus makes it obligatory on the husband to make the alleged adulterer a co-respondent unless he is excused as aforesaid. The above provision is mandatory and that is why the petitioner filed Ext.P2 and P3 applications. In Joseph v. Mary – (1999 (2) KLT 786) a Full Bench of this Court held that the non-impleadment of the adulterer as a co-respondent without dispensing with the above mandatory requirement was a sufficient ground to set aside a decree of divorce. In Thomas Kurien v. Meena –(2000 (1) KLT 183) a Full Bench of this Court held that impleadment of the alleged adulterer is a mandatory requirement unless the applicant is excused from doing so and that it is obligatory on a court entertaining a petition under the Act to consider all the aspects of the case including the requirements under Secs.11 and 14 of the said Act. Sec.10 of the Family Courts Act makes the Code of Civil Procedure applicable to proceedings before the Family Court. A reading of the provisions contained in O.I. R.10(2) C.P.C. will indicate that the court is given the power to add any person who ought to have been joined or whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the case. When such persons are added, sub-rule 4 of O.I.R. 10 C.P.C. indicates that the plaint has to be thereupon amended. This was the reason why the petitioner filed Exts.P2 and P3 applications which have been rejected by the Family Court for reasons which are unsustainable. 4. I am afraid that I cannot agree with the above submissions. The only ground on which Ext.P2 application for impleadment is justified by the petitioner is “inadvertent omission” on the part of the petitioner in not making the aforementioned persons as co-respondents. Ext.P1 petition for divorce on the ground of adultery was filed by the petitioner on 21.8.2003. 4. I am afraid that I cannot agree with the above submissions. The only ground on which Ext.P2 application for impleadment is justified by the petitioner is “inadvertent omission” on the part of the petitioner in not making the aforementioned persons as co-respondents. Ext.P1 petition for divorce on the ground of adultery was filed by the petitioner on 21.8.2003. It is definitely stated in paragraph 12 of Ext.P1 petition that the 1st respondent wife had been having adulterous intercourse with a worker and relative of the petitioner by name Moncy and a neighbour of the petitioner by name Jaison and after both of them went abroad, the 1st respondent wife started on illicit intimacy with the 2nd respondent, namely, Abooty alias Aboo who was doing various works in the house and paramba of the petitioner and who was also working as his driver for the past seven months and that the 1st respondent wife and having prurient relationship with the 2nd respondent Abooty after seducing him and threatening him to have sexual intercourse with her. Thus it is not as if the petitioner was unaware of the names of the other two persons with whom his wife allegedly had carnal relationship earlier. But the specific averment is that after Moncy and Jaison with whom she was having lascivious relationship went abroad, she developed an illicit relationship with the 2nd respondent. The petitioner was thus consciously making the 2nd respondent alone as a co-adulterer knowing fully well that Moncy and Jaison who were the earlier adulterers had gone abroad. 5. Adultery is an offence against the institution of marriage. It destroys the mutual trust and confidence which the parties to the wedlock are expected to have towards each other. Discovery by one of the spouses that the other spouse is engaging in an adulterous affair shatters his/her dreams and aspirations regarding the sanctity of marriage. Such a conduct on the part of the other spouse also spells in the region of infidelity and distrust. It is, therefore, a very serious matter to attribute unchastity to the wife. It is still more serious to accuse a third party to the marriage to have engaged in an amorous activity with a party to the marriage. Accusing a person of having indulged in an illicit relationship with one’s spouse is a matter of serious consequence as against such person as well. It is still more serious to accuse a third party to the marriage to have engaged in an amorous activity with a party to the marriage. Accusing a person of having indulged in an illicit relationship with one’s spouse is a matter of serious consequence as against such person as well. Hence making such a person a party to a matrimonial proceeding with such accusations has equally serious consequences. Therefore, when a party to a marriage consciously makes a person as a respondent alleging that he/she is a co-adulterer/co-adulteress, as the case may be, such party shall be deemed to know the reasonable and probable consequences of his act. It was presumably knowing the seriousness and the consequences which may flow therefrom that the petitioner deliberately did not choose to make Moncy and Jaison as respondent to the petition for divorce. But, he had no doubt or qualms in making Abooty alias Aboo as the 2nd respondent to the petition for divorce alleging that the petitioner’s wife was having illicit sexual intercourse with the said Abooty for the past several months. This is not a case where in a petition for divorce alleging adultery, the adulterer is not make a co-respondent. Abooty, the alleged adulterer, has been made a co-respondent. Hence, it cannot be said that the petition for divorce is bad for non-compliance of Sec.11 of the Indian Divorce Act. In a case where there is a plurality of adulterers, it is perfectly well within the discretion of the petitioner to make all or any one of them as co-respondents. In the case on hand, the petitioner had consciously chosen to pick up Abooty as the adulteror and had made him a co-respondent. His omission to make Moncy and Jaison as co-respondent cannot be termed as “inadvertent omission” by any stretch of imagination. In paragraph 21 of Ext.P1 the cause of action alleged is also the knowledge of the petitioner about the adulterous intercourse between his wife and Abooty. Hence the court below cannot be faulted for dismissing Exts.P2 and P3 applications. 6. Incidentally it is relevant to note that Ext.P1 petition for divorce was originally disposed of on 29.10.2003 with the very same allegations and with the very same parties on the array by the family court by passing an ex parte order. Hence the court below cannot be faulted for dismissing Exts.P2 and P3 applications. 6. Incidentally it is relevant to note that Ext.P1 petition for divorce was originally disposed of on 29.10.2003 with the very same allegations and with the very same parties on the array by the family court by passing an ex parte order. After getting an ex parte order for dissolution of marriage, the petitioner is said to have remarried. On 19.12.2003 the 1st respondent wife filed I.A.1334/2003 to set aside the ex parte decree for divorce. On 16.7.2004 the said application was allowed and the ex parte decree was set aside on terms directing payment of costs which was received by the petitioner. The petitioner then challenged the said order by filing W.P.(C).No.24784/2004 before this Court. The sad writ petition was allowed and the matter was directed to be reconsidered. On 13.3.2005 the family court again allowed I.A.1334/2004. That order was again challenged by the petitioner by filing W.P.(C).No.15045/2005 which was dismissed by this Court on 29.5.2005. It was in the meanwhile that on 21.3.2005 he filed Exts.P2 and P3 applications. The said applications have been filed designedly with the only purpose of protracting the proceedings knowing fully well that Moncy and Jaison who are admittedly abroad are not going to be served with summons in the near future. Even if Order I.R. 10(2) C.P.C. is applicable to the proceedings before the family court, when Abooty (the 2nd respondent herein) is already on the party array as an adulterer, it cannot be said that Moncy and Jaison are persons who ought to have been joined as additional respondents in the proceedings or whose presence before the family court is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the case within the meaning of O.I.R.10(2) C.P.C. For that reason also, the dismissal of Exts.P2 and P3 applications is fully justified. 7. The result of the foregoing discussion is that Ext.P4 does not call for interference and Exts.p2 and P3 petitions were rightly dismissed by the family court. This writ petition which is devoid of any merit or bona fides is accordingly dismissed, but without costs.