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Madhya Pradesh High Court · body

2013 DIGILAW 409 (MP)

Edward D’ Lima v. Lin D’ Lima

2013-03-25

Rajendra Menon

body2013
ORDER 1. Challenge in this writ petition under Article 227 of the Constitution is made to an interlocutory order dated 3.9.2012, passed by the Principal Judge, Family Court, Jabalpur in Civil Suit No. 343-A/2011, by which an application filed by the petitioner under Order I Rule 10 of the Code of Civil Procceure, for impleading respondent No. 2 as a party to the proceedings has been rejected. 2. Respondent No. 1 wife has filed a suit for divorce under section 10 of The Indian Divorcel Act, 1869 (hereinafter referred to as ‘Act of 1869), on the ground of desertion and cruelty. Annexure P/1 is a copy of the plaint filed by her. In reply to the allegations made in the plaint, petitioner has filed a reply vide Annexure P/2 and in the said reply certain grounds of adultery are alleged against the respondent. On the ground that the adulterer is a necessary party in view of the allegations made by the petitioner in the written statement, the application under Order I Rule 10 CPC was filed for impleading the adulterer as a respondent in the suit in question. The learned Court below after taking note of the provisions of section 10 of the Act of 1869, has held that the adulterer cannot be impleaded as a respondent and has rejected the application. Against the dismissal of the application, this writ petition is filed. 3. Shri Sidharth Gulatee, learned counsel, argued that the learned Court below has misinterpreted the provision of section 11 and as the adulterer is a neccessary party in view of the allegations made by the petitioner, the application has been incorrectly rejected. 4. Referring to the rules framed by the High Court and the Act of 1869; and, by referring to sub-rule (ii) of Rule 7 so also to Rule 4, it is stated that in rejecting the application the Court below has committed grave error and, therefore, interference be made and the application filed under Order I Rule 10 CPC be allowed. 5. Shri Arvind Shrivastava, learned counsel for respondent No. 1, has refuted the aforesaid and submitted that as the suit for dissolution of marriage presented by the respondent wife is not based on the ground of adultery, the adulterer is not a necessary party and in rejecting the application the Court below has not committed any error. 5. Shri Arvind Shrivastava, learned counsel for respondent No. 1, has refuted the aforesaid and submitted that as the suit for dissolution of marriage presented by the respondent wife is not based on the ground of adultery, the adulterer is not a necessary party and in rejecting the application the Court below has not committed any error. Learned counsel submits that the application filed is wholly misconceived and the petition is liable to be dismissed. 6. I have heard learned counsel for the parties and perused the records. 7. It is clear from the records, particularty the copy of the plaint - Annexure P/1 that respondent No.1/wife has filed the suit for dissolution of marriage mainly on the grounds of desertion and cruelty. The application for dissolution of marriage is not based on any grounds of adultery. Section 11 of the Act of 1869 contemplates impleading an adulterer or adulteress as a co-respondent, if the petition for dissolution of marriage is presented by the husband or the wife on the grounds of adultery. A plain reading of this section clearly goes to show that an adulterer is liable to be impleaded as a co-respondent only if in the petition for dissolution, ground of adultery is raised. In the absence of any ground being raised for adultery in the petition for dissolution of marriage, impleading the adulterer as a co-respondent is not necessary. 8. That being so, in rejecting the application under Order I Rule 10 CPC, after taking note of the requirement of section 11, the learned Court has not committed any error. 9. As far as reliance made to Rule 4 and 7(ii) of the Rules framed by the High Court are concerned, Rule 7(ii), which is relevant for the question, reads as under: “7(ii) Where the answer of a husband alleges adultery and prays relief a certified copy thereof shall be served upon the alleged adulterer. When in such case no relief is claimed, the alleged adulterer shall not be made a correspondent but a certified copy of the answer shall be served upon him together with a notice as under Rule 4 that he is entitled within the time therein specified to apply for leave to intervene in the suit, and upon such application he may be allowed to intervene, subject to such direction as shall then be given by the Court.” 10. This Rule nowhere provides for impleading the adulterer as a party. On the contrary, it only contemplates a separate procedure to be followed in case the husband makes allegation of adultery in his reply to the petition for dissolution of marriage. This Rule also does not help the petitioner in any manner. 11. Keeping in view the aforesaid, I see no error apparent on the face of the record nor can the order impugned be termed as perverse, erroneous or illegal to such an extent that interference in the matter is called for. 12. Accordingly, finding no ground to interfere into the matter, the writ petition is dismissed.