Madras High Court
V.Manivannan vs T.R.Metha on 5 June, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.06.2018
CORAM
THE HON'BLE MR. JUSTICE M.V.MURALIDARAN
C.R.P.(MD)(PD) No.851 of 2018 and
CMP(MD)No.3721 of 2018
V.Manivannan .. Petitioner
vs
1.T.R.Metha
2.Murugaperumal .. Respondents
Prayer: Civil Revision is filed under Article 227 of the Constitution of
India, to call for the records relating to the fair and decreetal order dated
16.03.2018 passed in I.A.No.245 of 2018 in H.M.O.P.No.338 of 2015 on the file
of the III Additional Sub Ordinate Judge (FAC), Trichy and set aside the
same.
!For Petitioner : Mr.G.Karnan
^For Respondents : Mr.Chandrakumar (for R1)
:ORDER
The instant Civil Revision Petition is filed by the husband / Revision petitioner as against the dismissal order of the Trial Court refusing to implead the paramour of his wife / 1st Respondent herein, in the divorce petition filed by him on the ground of cruelty.
2.According to the learned counsel for the petitioner, the petitioner has filed divorce petition against the respondent herein in H.M.O.P.No.65 of 2015 on the file of the learned III Additional Sub-Court, Trichy, on the ground of cruelty under Section 13(i)(a) of the Hindu Marriage Act, 1956. It is the submission of the learned counsel that the marriage between the petitioner and the respondent was solemnized on 12.03.2014. Since the cruelty caused by the respondent herein could not be tolerated by the petitioner, he filed the above divorce petition. In the divorce petition itself the petitioner has clearly averred about the illicit relationship of the respondent with the 2nd respondent herein viz., Murugaperumal. Though the petitioner has averred the relationship of the respondent with the 2nd respondent herein even prior to the marriage, he failed to implead him as party respondent in the divorce petition, since he could not trace out the address of the 2nd respondent herein. Hence, he filed I.A.No.245 of 2018 to implead the aforesaid Murugaperumal as 2nd respondent in the divorce petition.
3.The learned counsel for the petitioner would further submit that the learned Trial Judge without giving an opportunity to the petitioner herein to prove his case erroneously dismissed the impleading application. He has also relied on a decision of this Court reported in 2005 (2) CTC 28 in the case of M.Mallika ?Vs- M.Raju and another, wherein it was held as follows:
?9. The extract from the judgment, in Easwaran v. Mani, 2001 (1) MLJ 318, was not just a passing comment and this is seen from the following paragraphs in the said judgment:
"10..... The husband also had not given the name of any particular individual as the adulterer. In the absence of any particular individual being named and in the absence of proof of want of access to the parties living in the same village, it is very dangerous to come to the conclusion that the wife committed adultery exposing herself to be slapped with a proceedings for divorce........
14. It has been held in Rajee v. Baburao, 1995 TNLJ 239 as follows: "In a petition for divorce, rules require that the specific act of adultery and the occasion when and the place where such acts were committed together with the name and address of the person with whom such adultery was committed, should be given".
10. From the Mayne's Hindu Usage Law (15th Edition), the following extracts may be relevant:
"It is not necessary for the aggrieved husband, to prove with whom his erring wife had illicit relations. It is enough for him to prove that she was leading an adulterous life....... The charge of adultery is a serious charge as it casts aspersions on the character of the spouse and affects his/her reputation in the Society...... Therefore, not only the pleadings in respect of the charge of the adultery should be specific it should also be established in all probabilities.
11. In Mirapala Venkatammana v. Mirapala Peddiraju, 2000 (II) DMC 40 (DB), the Division Bench of the Andra Pradesh High Court held that the failure of the husband to implead the alleged adulterer rendered the petition bad for non-joinder of necessary parties, Paragraph 2 of the said judgment is relevant.
"2. Even though the said plea was recorded by the lower Court, the lower Court did not concentrate on that aspect at all. In a case for divorce basing on adultery, the adulterer is a necessary party and ought to be made second respondent in the instant case. But, the respondent/husband had failed to implead the alleged adulterer and as such the opposite party is hit by non- joinder of necessary party. We are fortified in our view by the judgment of Allahabad High Court in Udai Narain Bajpal v. Smt. Kusum Bajpai, , wherein the Court held as follows;
"Learned Counsel for the respondent also placed reliance on the decision in AIR 1942 All. 223 (supra) for the purpose of contending that till such time as the appellant's application for amendment of his petition by addition of the alleged adulterers as co-respondents was allowed and the petition was amended accordingly, it was not in accordance with law and not maintainable. It was urged that till the co-respondents were impleaded it was not open to the Court either to frame issues in the petition or admit evidence on Issue No. 5 and consequently the framing of the issues by the Trial Court as well as the finding on Issue No. 5 are without jurisdiction. There is force in this contention which must be accepted".
In that case, on facts the Division Bench came to the conclusion that the allegation of adultery was without any Legally acceptable evidence.?
4.By relying upon the decision cited above, the learned counsel for the petitioner contented that the failure of the husband to implead the paramour of the 1st respondent herein rendered the petition bad for non-jointer of necessary parties. Hence, the present Civil Revision Petition is filed questioning the dismissal order of the Trial Court.
5.Per contra, the learned counsel for the 1st respondent herein has strenuously contented that the act of the petitioner herein in making serious allegation of adultery against his wife is highly condemnable. The petitioner earlier has filed an amendment application in I.A.No.256 of 2017 to amend the pleading by incorporating the allegation of adultery which was dismissed by the Trial Court and confirmed by the Hon?ble Court in CRP(MD)No.1126 of 2017. Now, by way of this impleading petition, the revision petitioner, indirectly trying to achieve his target which he failed in his earlier attempt. The Learned Trial Judge by considering the entire facts and circumstances of the case has rightly dismissed the application, holding that the proposed party is either a proper or a necessary party to the original divorce petition, since the petitioner has not sought for divorce on the ground of adultery also. Therefore, the Learned Counsel prays this Court to dismiss the Civil Revision Petition.
6.I heard Mr.G.Karnan, learned counsel for the petitioner and Mr.Chandrakumar, learned counsel for the 1st respondent and perused the entire records.
7.A perusal of the order of the Trial Court would disclose that the petitioner herein failed in his earlier attempt regarding amendment of pleadings in the divorce petition to include the ground of adultery which went up to this Court in C.R.P.(MD)No.1126 of 2017. This Court while dismissing the Civil Revision Petition, issued direction to the Trial Court to dispose of the H.M.O.P. within a period of 6 months. This Court is of the view that only to circumvent the aforesaid direction, the petitioner has filed the impleading petition.
8.The judgment cited in Supra will have no application at all to the facts of the present case on hand. In the decision referred above, the divorce O.P was filed on the ground of adultery also. But in the present case, the petitioner has filed the divorce petition only on the ground of cruelty alone and further, there are no pleadings for adultery. Therefore, in the considered opinion of this Court, the Trial Court is right in holding that the 2nd respondent herein is not a proper or necessary party to the divorce petition and further the petitioner has not sought for divorce on the ground of adultery.
9.In view of the discussion above, I do not find any irregularly or infirmity in the impugned order of the Court below and the same is confirmed.
10.In the result, this Civil Revision Petition is dismissed. However, considering facts and circumstances of the case, the Trial Court is directed to dispose the H.M.O.P.No.338 of 2015 within a period of three months from the date of receipt of this order. No costs. Consequently connected miscellaneous petition is closed.
To The III Additional Subordinate Judge (FAC), Trichy.
.