Writ Petition No.2110 of 2008

10th December, 2008

Petitioner Counsel: Mr. DHANANJAYRAO D. RANANAWARE
Respondent Counsel: Mr. AMIT BORKAR

JUDGMENT

JUDGMENT :- The petitioner/original respondent has challenged the impugned order dated 01.02.2008 passed by Ad-hoc District Judge 2, Satara on Exh.33 in Regular Civil Appeal No.153/2006 as in Appeal her application for amendment of the written statement to include the fact in respect of allegation of adultery and to add the concerned person as necessary party to the petition has been rejected.

2. The respondent/husband filed petition for divorce under Section 13(1)(i-a) of Hindu Marriage Act, 1955 (for short 'the Act'). The petitioner filed written statement and denied the case including averments about adultery. The ground of divorce was not of adultery as contemplated under the Act i.e. 13(1)(i). There was no such application moved before the trial court by; the petitioner to add the concerned person as a party as there was allegation made about the adultery. In fact, issues were also framed which includes the issue of adultery. The parties led the evidence including the petitioner and after considering all the material available on record, by order dated 07.04.2006, the Joint Civil Judge, Senior Division, Satara granted the decree of dissolution of marriage under Section 13(1)(i-a) of the Act and also ordered permanent alimony to be paid to the petitioner/original respondent at the rate of Rs.1,500/- per month.

3. The petitioner preferred Appeal and in the Appeal moved this application.

4. As per Civil Manual, Rule (5) of Hindu Marriage and Divorce Rules, 1955 provides as under :

"(5) Necessary parties : (a) In every petition for divorce or judicial separation on the ground that the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than the petitioner, 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 a life of prostitute and that the petitioner does not know any person with whom the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse;

(iv) for any other sufficient reasons the Court may deem fit to consider;

(b) In every petition under Section 13(2)(i) of the Act, the petitioner shall make "the other wife" mentioned in that section a co-respondent.

(c) In every petition under Section 11 of the Act on the ground that the condition in Section 5(1) is contravened, the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent."

5. Therefore, prima facie, in the petition for dissolution of marriage on the ground of adultery the concerned person should be made party/co-respondent except the ground mentioned above. If application is moved, the court can dispense with the joinder of such person also on the ground reflected above. In the present case, admittedly, the application was not under this Section. The basic application was on the ground of cruelty which includes the allegation of adultery. Therefore, the main relief was claimed on the ground of cruelty. The petitioner participated in the proceeding inspite of specific issue framed by the court on the ground of adultery. No steps were taken by the parties and basically the petitioner to add such person as co-respondent. The court passed the order based upon the material available. Now, therefore, the Court considering the provisions of law and facts and circumstances of the case rightly rejected the application. The expression "cruelty" admits in its ambit, every such act which causes mental agony to the aggrieved party. The aspect of cruelty therefore was also considered from this perspective. The cruelty being the only ground for divorce and the petitioner participated throughout in the proceedings, without any objection, the amendment application now at the stage of Appeal, in the facts and circumstances of the case, is rightly rejected.

6. Taking all this into account, there is no illegality in the impugned order as it is well within the frame work of law and facts and circumstances of the case. The petition is accordingly dismissed. No costs.

Petition dismissed.