JUDGMENT Arindam Sinha, J. Mr. Nayak, learned advocate appears on behalf of appellant-husband and presses for hearing of the appeal. He submits, his client is the husband, whose case for divorce was rejected by the family Court. The rejection was in spite of respondent-wife having filed application with prayer to allow the civil proceeding, to dissolve the marriage by decree of divorce on direction for petitioner to return admitted dowry articles and refund dowry amount of Rs. 4,60,000/-. He submits further, respondent-wife has since re-married. 2. In the appeal, respondent-wife was represented for a while by learned advocate, who since obtained leave to retire on no instruction from her. We reproduce below paragraph 3 from order dated 23rd November, 2023 and paragraphs 2 and 3 from order dated 13th December, 2023, are reproduced below. Order dated 23rd November, 2023 '3. Mr. Debata submits, he does not have instruction on his client having remarried. His instructions are his client had conceded for the marriage being dissolved upon permanent alimony directed. His client is consistent with her stand before this Court as well. Order dated 13th December, 2023 2. Mr. Debata, learned advocate appears and submits, in spite of best efforts he has not been able to obtain instructions from his client, respondent-wife. He seeks leave to retire. 3. Leave to retire is granted.' 3. It appears from impugned judgment that the family Court had found appellant-husband to have established cruelty. The finding was regarding allegation, inter alia, respondent had a boyfriend/paramour, called Atul. In this connection, we reproduce below a paragraph from impugned judgment. 'In this instant case, role of Atul is brought to the knowledge of the petitioner by this court vide order dated 12.07.2022. It is clarified by the ld. Counsel on 02.08.2022 that the petitioner got name of boyfriend of the respondent during course of trial. Hence, it need not to implicate him as a party. After hearing submissions of learned counsel, the record was posted for judgment. The petitioner was given ample opportunity to clarify the reasons for non-implicating boyfriend of the respondent, but he has failed to do so in accordance to Section 5 of Hindu Marriage and Divorce (Odisha High Court) Rules 1956. Therefore, this court feels that though cruelty is established against the respondent, but a decree of divorce cannot be granted in absence of a proper party to this proceeding. Therefore, this court feels that though cruelty is established against the respondent, but a decree of divorce cannot be granted in absence of a proper party to this proceeding. Hence, this proceeding should be dismissed for non-joinder of proper party.' (emphasis supplied) 4. Appellant has also brought on record in this appeal by way of an affidavit photographs, which he contends depict respondent-wife getting married to another. This appears to be reason why she had earlier filed petition in the family Court conceding for the divorce but seeking return of admitted dowry articles and dowry amount of Rs. 4,60,000/-. On query from Court Mr. Nayak submits, his client does not admit to having any dowry articles or money. Respondent-wife is not before us to contend otherwise. 5. In MATA no. 36 of 2023 (Harekrushna Behera v. Manasi Jena) dealt with by us on judgment dated 3rd January, 2024, we had considered rule 5 in Hindu Marriage and Divorce (Odisha High Court) Rules, 1956. We reproduce below paragraphs 5, 6 and 7 from said judgment. '5. Claim of appellant-husband for dissolution of the marriage was rejected, as aforesaid, on technicality of not having added the paramour as a necessary party, required by rule 5 in Hindu Marriage and Divorce (Orissa High Court) Rules, 1956. It is apparent the rules were made in exercise of power under section 21 in Hindu Marriage Act, 1955. The provision is reproduced below. '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 (5 of 1908)' 6. Code of Civil Procedure, 1908 by order I rule 3 provides for who may be added as defendants in a suit. The provision is reproduced below. '3. Code of Civil Procedure, 1908 by order I rule 3 provides for who may be added as defendants in a suit. The provision is reproduced below. '3. Who may be joined as defendants.- All persons may be joined in one suit as defendants where- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise.' Where a husband alleges adultery and dissolution of the marriage under clause (i) in section 13(1) of Hindu Marriage Act, 1955, he cannot be said to have a right of relief against the paramour. In the circumstances, the paramour is not a necessary party-defendant in a suit filed, to be tried on application of the Code. However, by the rules a paramour has been made a necessary party. We reproduce below clause (a) under rule 5 as is relevant for our purpose. '5. Necessary parties- (a) In every petition for divorce or judicial separation on the ground that the respondent is living a adultery or has committed adultery with any person, the petitioner shall make such person a co- respondent. The petitioner, may however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of such person as a co- respondent on any of the following grounds- (i) That the name of such person is unknown to the petitioner although he has made due efforts for discovery; (ii) That such person is dead; (iii) That the respondent being the wife is leading the life of a prostitute and that the petitioner knows of no person with whom adultery has been committed; (iv) For any other sufficient reason the Court may deem fit to consider.' 7. Though the rule mandates making of the paramour as a necessary party but exceptions have been provided where such person may not be made a party. Therefore, the mandate of the paramour 'shall' be made a party is to be interpreted as to be made party where possible. On query from Court Mr. Acharya submits, no question was put by the family Court to his client in the box requiring information regarding address of the paramour. Therefore, the mandate of the paramour 'shall' be made a party is to be interpreted as to be made party where possible. On query from Court Mr. Acharya submits, no question was put by the family Court to his client in the box requiring information regarding address of the paramour. He submits, all his client knows is that the paramour does business in Sector-15, Noida in State of Uttar Pradesh. We made this query because section 165 in Evidence Act, 1872 empowers the Judge to, inter alia, ask questions.' 6. In this case, the family Court recorded that appellant-husband came to know about the paramour during trial. In those circumstance and our view taken that rule 5 is to be applied only where possible coupled with the well settled doctrine that procedure is the hand maid of justice, we find fit to interfere in appeal, to reverse impugned order. However, we hasten to add that the family Court cannot be faulted for requiring compliance of the rule, which we in appeal are dispensing with. 7. The marriage solemnised on 2nd March, 2014 between the parties is dissolved by decree of divorce hereby granted on the ground under clause (i) and (i-a) in Section 13 (1) of Hindu Marriage Act, 1956. The decree be drawn up expeditiously. Respondent-wife not having contested the appeal, we presume her omission is because she cannot substantiate her claim regarding dowry articles and also cannot deny having got remarried. As such she does not require maintenance. 8. The appeal is accordingly disposed of.