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2021 DIGILAW 428 (MAD)

Kala v. E. N. Ramesh

2021-02-08

S.M.SUBRAMANIAM

body2021
JUDGMENT : S.M. Subramaniam, J. 1. The judgment and decree dated 11.09.2012 passed in C.M.A. No. 15 of 2011 reversing the judgment and decree dated 21.02.2011 passed in H.M.O.P. No. 27 of 2005 is under challenge in the present Civil Miscellaneous Second Appeal. 2. The substantial questions of law mainly raised in the appeal in hand are as under: "a) Whether the petition for dissolution of marriage filed by the respondent can be entertained, when the adulterer is not impleaded as a party in spite of the fact that the allegation of adultery is taken as a ground for divorce. (b) Whether the first Appellant Court is right in adjudicating the grounds relating to adultery without impleading the adulterer as a party or examining adulterer for the purpose of culling out the truth or establishing the facts." 3. The marriage between the appellant and the respondent was solemnized on 26.02.2001 as per the Hindu Rights and Customs. Soon after the marriage, the spouses started living happily and they were living in Army Head Quarters at Thiruvananthapuram. On 16.05.2003, a female child born from and out of the wedlock at Thiruvananthapuram, and till November 2003, the appellant/wife was living with the respondent/husband at Army Head Quarters at Thiruvananthapuram. On 23.04.2005, the respondent husband filed a petition for dissolution of marriage on the ground of cruelty and adultery before the Sub-Court, Krishnagiri. The petition for divorce was dismissed by the Sub-Court, Krishnagiri on 21.02.2011. Challenging the said judgment, the husband filed an appeal in C.M.A. No. 15 of 2011 before the Principal District Judge, Krishnagiri. The said appeal was allowed in favour of the husband on 11.09.2012. Challenging the said judgment and decree the appellant/wife preferred the present Civil Miscellaneous Second Appeal. 4. Based on the facts in nutshell narrated above, the question arises whether the first Appellate Court right in granting dissolution of marriage, mainly on the ground of adultery in the absence of impleading the adulterer as a party in the HMOP. It is an admitted fact that adulterer has not been impleaded as a party respondent in the HMOP. Even at the appeal stage, the adulterer has not been impleaded. The Trial Court dismissed the petition for divorce mainly on the ground that adultery has not been established, so also on the ground of adultery. The first Appellate Court in its finding held that there is possibility of adultery. Even at the appeal stage, the adulterer has not been impleaded. The Trial Court dismissed the petition for divorce mainly on the ground that adultery has not been established, so also on the ground of adultery. The first Appellate Court in its finding held that there is possibility of adultery. The exact finding made by the first Appellate Court reads as under: OTHER LANGUAGE 'she had written several letters to the petitioner to arrange for army family quarters to may at and to take her there and she had also written to the army authorities about it and requested for providing army family quarters to enable her to go and live with the petitioner where he was serving' OTHER LANGUAGE 5. The above findings of the first Appellate Court reveals that the ground of adultery was considered by the Appellate Court based on presumptions and assumptions and, more specifically, without affording opportunity to the parties as well as to the adulterer against whom the finding are given. 6. In any angle such findings are in violation of principles of natural justice. If an allegation of adulterer is raised by the husband or the wife, necessarily the adulterer must be impleaded as a party and parties must be given opportunity to examine and cross-examine, so as to arrive a decision. 7. Contrarily, the respondent/husband raised an allegation of adultery against a particular person. When a person is identified then such a person must be impleaded as a necessary party. In the absence of any such person, there must be any acceptable evidence atleast in the findings. Therefore, the first Appellate Court is wrong in arriving a conclusion based on certain presumptions and assumptions. It is very dangerous to arrive at such a decision in matrimonial cases. It will attach a stigma on either of the spouse. When the ground of adultery is taken on either of the spouse, then it has been a pale of doubt and necessarily the adulterer must be impleaded as a party and must be given an opportunity subject to examination and cross-examination by the respective parties. 8. This being the basic principles to be followed, this Court is of the considered opinion that the first Appellate Court has committed an error apparent in arriving a conclusion regarding the ground of adulterer in the presumptions and assumptions in the absence of adulterer in the matrimonial petition itself. 8. This being the basic principles to be followed, this Court is of the considered opinion that the first Appellate Court has committed an error apparent in arriving a conclusion regarding the ground of adulterer in the presumptions and assumptions in the absence of adulterer in the matrimonial petition itself. Thus, the first Appellate Court missed the basic principles and allowed the appeal filed by the respondent. 9. In view of the fact that the dissolution of marriage was granted mainly on the ground of adultery, the same would amount to a stigma on the wife and under these circumstances, the separation of matrimonial home would not be a ground to grant divorce at this point of time as the finding of the first Appellate Court is not only perverse but also affecting the reputation, image of the wife. 10. Under these circumstances, the judgment and decree dated 11.09.2012 passed in C.M.A. No. 15 of 2011 reversing the judgment and decree dated 21.02.2011 passed in H.M.O.P. No. 27 of 2005 is set aside. Consequently, C.M.S.A. No. 16 of 2013 stands allowed. No costs. Connected miscellaneous petition is closed.