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V.Manivannan vs T.R.Metha on 5 June, 2018

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 and
Caveat (MD)No.737 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 petitions are closed.

To

The III Additional Subordinate Judge (FAC),
Trichy.

.

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