IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
219 FAO-M-303-2014
DATE OF DECISION: 24.09.2018
ANJU … Appellant
Versus
RAJINDER KUMAR … Respondent
CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI
HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present: Mr. Raman B. Garg, Advocate with
Ms. Gitanjali Chhabra, Advocate
for the appellant.
Respondent ex parte.
*****
M.M.S. BEDI, J. (ORAL)
The respondent-husband has been granted decree of divorce vide
impugned judgment and decree dated 28.05.2014 on the ground that the
appellant-wife has been living separately from the respondent in order to
continue her amorous relation with his first cousin Ajay @ Rinku, which
would constitute mental torture.
On notice having been issued to the respondent-husband in the
appeal, the respondent-husband had put in appearance and contested the
appeal. An application under Section 24 of the Hindu Marriage Act, 1955
filed by the applicant-appellant wife, was allowed on 17.08.2017, requiring
the respondent to pay the maintenance pendente lite at the rate of ` 4,000/-
per month, besides litigation expenses of ` 30,000/-. The respondent-husband
was given time to pay above said expenses. On 28.11.2017, despite the case
having been called twice, nobody had put in appearance on behalf of the
respondent. A warning was issued that in case, the arrears of maintenance
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FAO-M-303-2014 2
pendente lite are not paid on the next date of hearing, the defence would be
struck off. On 18.12.2017, counsel for the respondent had put in appearance
and expressed inability to pay any amount on the excuse that the appellant is
residing with another person.
Before passing any prejudicial order against the respondent, we
deemed it appropriate to give a fair opportunity to the respondent to comply
the orders of interim maintenance. Counsel for the respondent on 26.03.2018,
sought time to clear the arrears of maintenance but on 27.08.2018, neither
anyone had put in appearance on behalf of the respondent nor any arrears of
maintenance were paid, as a result of which, this Court was compelled to
proceed ex parte against the respondent, besides striking off his defence in
the appeal.
Today, the appeal has been taken up for final arguments. In
order to give fair opportunity to the respondent, we have called this case
twice. No one has put in appearance on behalf of the respondent. With the
assistance of the counsel for the appellant, we have gone through the
judgment of the lower court. The respondent-husband had produced
witnesses PW-1 Maghar Singh to state that the appellant had left the house of
the respondent without intimation and had illicit relations with Ajay @
Rinku. Suraj Bhan PW-2 was produced for deposing the same thing that the
appellant used to leave the house of the respondent without information. PW-
3 Krishan Kumar stated in the same terms referring the name of Ajay @
Rinku. PW-4 Veeru appeared for the respondent and produced CD containing
recorded version between Veeru, Ajay and Anju. The respondent himself
appeared as PW-5 and produced his affidavit Ex.PW-5/A, wherein he had
levelled similar allegations against the appellant-wife.
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FAO-M-303-2014 3
The judgment of Additional District Judge, Sirsa indicates that
the divorce has been granted on the ground that the appellant-wife has left the
house of respondent-husband without his permission and that she is staying
with another person. Despite the fact that the defence of the respondent has
been struck off in the appeal and he is proceeded against ex parte, in the
interest of justice, we have considered the judgment of the lower court.
Since the pleading and the evidence of the respondent contain
allegations of adultery and divorce has been sought on the ground, alleging
that the conduct of the appellant-wife is mental cruelty to the respondent, we
have considered the allegations in the light of Hindu Marriage (Punjab)
Rules, 1956, which have been framed under Section 21 of the Hindu
Marriage Act, 1955. As per Rule 10 of the Hindu Marriage (Punjab) Rules,
1956, any petition filed on the ground of adultery requires adulterer to be
impleaded as party. Rule 10 of the Hindu Marriage (Punjab) Rules, 1956
reproduced as follows:-
“10. Upon a petition presented by a husband for divorce
on the ground of adultery, the petitioner shall make the
alleged adulterer a co-respodnent. The petitioner may,
however, be excused from so doing on any of the
following grounds with the permission of the Court:-
(a) That the respondent is leading the life of a
prostitute and that the petitioner knows of no
particular person witih whom the adultery has
been committed;
(b) that the name of the alleged adulterer is unknown
to the petitioner although he has made due efforts
to discover the same;
(c) that the alleged adulterer is dead.”
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FAO-M-303-2014 4The lower court record indicates that the adulterer has not
been impeladed as party as per the requirement of the law. As such,
the judgment of the lower court is contrary to the Statute. The
allegations of adultery cannot be considered without impleadment of
the alleged adulterer. Therefore, the appeal deserves to be allowed.
Ordered accordingly.
The judgment and decree dated 28.05.2014 obtained by
the respondent-husband, under Section 13 of the Hindu Marriage Act,
is hereby set aside. The appeal is allowed, without prejudice to the
rights of the appellant to recover any amount due, in accordance with
law, as per Section 36 CPC. Parties to bear their own cost. Decree
sheet be prepared accordingly.
(M.M.S. BEDI)
JUDGE
(ANUPINDER SINGH GREWAL)
JUDGE
24.09.2018.
SwarnjitS
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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