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Smt. Nethravathi M L vs Dr B N Shivaswamy on 8 March, 2018

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R
IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 8TH DAY OF MARCH, 2018

BEFORE

THE HON’BLE Dr.JUSTICE VINEET KOTHARI

WRIT PETITION No.39350/2016 (GM-FC)

Between:

Smt. Nethravathi M.L.
D/o Sri. M.K. Lingaiah
1st Wife of Dr. B.N. Shivaswamy
Aged about 43 years
Residing at Maruvanahalli Village
Bagur Hobli, Channarayapatna Taluk
Hassan District – 573 111.
…Petitioner
(By Mr. M. Sivappa, Senior Counsel alongwith
Mr. K.T. Govinde Gowda, Advocate)

And:

1. Dr. B.N. Shivaswamy
S/o Late Ninge Gowda
Aged about 46 years
Residing at Beechagondanahalli Village
Bagur Hobli, Channarayapatna Taluk
Hassan District-573131.

2. Smt. Revathi @ Vedavathi
2nd Wife of Dr. B.N. Shivaswamy.

3. Master Kushadwaj
S/o Dr. B.N. Shivaswamy
Smt. Revathi @ Vedavathi
Both are residing at
Govt. Quarters
Date of Order 08-03-2018 W.P.No.39350/2016
Smt. Nethravathi M.L. Vs. Dr. B.N. Shivaswamy Ors.

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Hirisave Community Heath Center
Hirisave, Channarayapatna Taluk
Hassan District – 573124.

Rep. by his natural guardian
and Mother Smt. Revathi @ Vedavathi.

… Respondents

(By Mr. Pratheep K.C. alongwith
Mr. Nandish Patil, Advocates for R1)

****
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to call for records in
M.C.No.17/2013 (Old No.40/2011) on the file of Hon’ble
District Family Court Judge, Hassan and issue a Writ of
Certiorari to quash the order dated 22/06/2016 passed on
I.A.No.10 in M.C.No.17/2013 (Old No.40/2011) on the file of
Hon’ble District Family Court Judge, Hassan produced as
Annexure -‘A’ (impugned) and allow I.A.No.10 filed by the
petitioner in the said case etc.,

This Writ Petition coming on for Orders this day, the
Court made the following:-

ORDER

Mr. M. Sivappa, Senior Counsel for
Mr. K.T. Govinde Gowda, Adv. for petitioner – wife
Mr. Pratheep K.C. and
Mr. Nandish Patil, Advs. for R1 – husband

1. The petitioner, Smt. Nethravathi M.L. has

filed this writ petition under Article 227 of the
Date of Order 08-03-2018 W.P.No.39350/2016
Smt. Nethravathi M.L. Vs. Dr. B.N. Shivaswamy Ors.

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Constitution of India on 18/07/2016 aggrieved by the

order passed by the Principal Judge, Family Court,

Hassan on 22/06/2016 in Matrimonial Case,

M.C.No.17/2013, a Divorce Petition filed by the

Respondent Husband, Dr. B.N. Shivaswamy against

the present petitioner, Smt. Nethravathi M.L under

Section 13 (1)(i-a) (i-b) of the Hindu Marriage Act,

1955.

2. The impugned order dated 22/06/2016 has

been passed by the learned Family Court rejecting the

I.A.No.10 filed by the present petitioner, Smt.

Nethravathi M.L. seeking impleadment of one Smt.

Revathi @ Vedavathi and Master Khushadwaj, who

according to the petitioner Smt. Nethravathi M.L. were

the second wife and her son of the second, but illegal

marriage with the Respondent Dr.B.N. Shivaswamy.

3. The Court below rejected the said Application

for impleadment of these two persons, viz. Smt.
Date of Order 08-03-2018 W.P.No.39350/2016
Smt. Nethravathi M.L. Vs. Dr. B.N. Shivaswamy Ors.

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Revathi @ Vedavathi and Master Khushadwaj by the

impugned order dated 22/06/2016 giving the following

reasons for the same.

“19. As such, order 1 rule 10(2) of code
of civil procedure, provides that at any stage
of the proceedings, the Court is empowered to
implead the parties to the proceedings who
are necessary parties or proper parties to the
proceedings and whose presence is
required for effective adjudication of the
dispute between the parties to the
proceedings.

20. In the light of these provisions, it
is noted that the petitioner has not sought
any relief against the proposed
respondents and more so as per the law, the
respondent is not permitted to seek any
reliefs against the proposed respondents in
the present proceedings before this Court in
this case. From that angle of the matter the
presence of the proposed respondents
are not required before this Court in this
case as parties to the proceedings.

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Smt. Nethravathi M.L. Vs. Dr. B.N. Shivaswamy Ors.

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21. The maintainability of contention
taken by the respondent regarding the
alleged second marriage of the petitioner with
the proposed respondent No.2 may be
considered in the proceedings by this Court
on merits, at the time of final disposal of this
case. In the opinion of this Court, the
presence of the proposed respondents as
parties to the proceedings is not necessary
and required to adjudicate the case made out
by the respective parties.

22. Keeping note of the contention of
the respective parties, in the opinion of this
Court, no prejudice will be caused to the
proposed respondents if they are not
arrayed as parties because this Court is not
going to decide any alleged rights of alleged
second wife and child of the petitioner in this
case.

23. Hence, from any angle of the
matter the respondent is not entitled for
the reliefs sought for in this application.

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Smt. Nethravathi M.L. Vs. Dr. B.N. Shivaswamy Ors.

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Accordingly the points are answered in the
Negative.”

4. The learned Senior Counsel for the petitioner

Smt. Nethravathi M.L., Mr. M. Sivappa along with

Mr.K.T. Govinde Gowda have submitted before the

Court that the proposed Respondent parties, viz., Smt.

Revathi @ Vedavathi and her son, Master

Khushadwaj were proper parties to the said Divorce

Petition filed by the husband and the learned Court

below has erred in not impleading them in the present

lis pending between the parties under Section 13 (1)(i-a)

(i-b) of the Hindu Marriage Act, 1955.

5. The learned Senior Counsel Mr. M. Sivappa

relied upon the two Division Bench decisions of this

Court, viz. in the case of Arun Kumar Agarwal Vs.

Radha Arun and another, AIR 2003 Kar.508 and a

subsequent decision of another Division Bench of this

Court in the case of K.N. Sunil Kumar Vs. Preethi
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Prasad and others, 2007 (1) KCCR p.594 (DB) and

submitted that the impleadment of these two parties,

viz. the alleged second wife of the petitioner Dr.B.N.

Shivaswamy in the Divorce Petition was essential as it

also amounted to adultery on the part of the petitioner,

Dr.B.N. Shivaswamy and the Division Bench of this

Court in the afore-cited judgments has clearly held that

where a Divorce Petition is filed on the ground of

adultery, then the adulterer is a proper party if not a

necessary party in such Divorce Petitions.

6. The relevant extract of the Division Bench

judgment of this Court in Arun Kumar Agarwal’s case

(supra) is quoted below for ready reference.

“10. There can be no doubt that in a
proceeding where the Court has to decide
whether the spouse of the petitioner had
voluntary sexual intercourse with
another person, by adding such person
(alleged adulterer) as a Respondent, the
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Court would be in a better position to
effectually and completely adjudicate
upon the controversy. Nor can it be said
that in a proceeding under S.13(1)(i) of H.M.
Act, when the spouse and alleged adulterer
are impleaded as respondents, the alleged
adulterer is improperly joined as a
Respondent. Therefore the alleged adulterer
will be a proper party to a proceeding
under S.13(1)(i) of H.M. Act. The Family
Court and the learned single Judge merely
concentrated on the fact no relief was sought
against the second Respondent. They,
therefore, considered only whether the
adulterer is a necessary party to a petition
seeking divorce on the ground of adultery, but
completely ignored that the alleged adulterer
is a proper party.”

7. The second Division Bench judgment in the

case of K.N. Sunil Kumar (supra), following the

aforesaid judgment also granted similar relief in the

matter.

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8. Per contra, Mr. Pratheep K.C. and Mr. Nandish

Patil appearing for the Respondent No.1, Dr.B.N.

Shivaswamy have submitted before the Court that the

Divorce Petition has been filed by the husband Dr.B.N.

Shivaswamy on the ground of cruelty and desertion

under Section 13(1)(i-a) (i-b) of the Hindu Marriage

Act, 1955 and initially an ex-parte divorce decree was

granted by the learned Family Court below, since the

present petitioner, Smt. Nethravathi M.L. failed to

appear for Cross-examination of the petitioner husband,

Dr.B.N. Shivaswamy and therefore, the Court below

granted an ex-parte decree of the divorce which was

however, set aside by the Division Bench of this Court

in M.F.A.No.4150/2014 (FC) (Smt.Nethravathi Vs Dr.

B.N. Shivaswamy) on 11/03/2016 restoring the trial to

the Family Court for adjudication on merits and also

directing the petitioner Smt. Nethravathi M.L. to deposit

the costs of Rs.25,000/- towards the litigation

expenses.

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9. However, upon a Review Petition filed by Smt.

Nethravathi M.L. namely, Review Petition

No.228/2016 (Smt. Nethravathi Vs. Dr. B.N.

Shivaswamy), another Division Bench of this Court vide

order dated 02/12/2016 on the concession given by

the Respondent Dr.B.N. Shivaswamy, the cost of

Rs.25,000/- was set aside by the Division Bench and a

new time frame was fixed for disposal of the

M.C.No.17/2013 between the parties.

10. The learned counsels for the Respondent

Dr.B.N. Shivaswamy further submitted that the

Division Bench judgments cited by the learned counsels

for the petitioner Smt. Nethravathi M.L. are not

applicable to the facts of the present case because the

Divorce Petition has not been filed by the Respondent

Dr. B.N. Shivaswamy on the ground of alleged adultery

by the petitioner Smt. Nethravathi M.L.

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11. The learned counsels for the Respondent

Dr.B.N. Shivaswamy have also brought to the notice

of the Court as noted in the impugned order dated

22/06/2016 by the Family Court also that the present

petitioner, Smt. Nethravathi M.L. has also filed a

private complaint on 13/01/2012 in PCR No.15/2012

now numbered as C.C.No.821/2012 against the

Respondent husband, Dr.B.N. Shivaswamy which is

pending trial on the ground of alleged Bigamy.

12. The learned Court below has also noted in the

impugned order that the present petitioner, Smt.

Nethravathi M.L. has also filed a O.S.No.50/2014

against the husband Dr.B.N. Shivaswamy for declaring

the said second marriage of Dr.B.N. Shivaswamy with

Smt. Revathi @ Vedavathi as null and void and that

the said Civil Suit is also pending in the Court of the

Principal Civil Judge (Sr.Dn.) at Channarayapatna.

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13. These facts of institution of these cases

between these parties are not disputed by the learned

counsel for the petitioner, Smt. Nethravathi M.L.

14. I have heard the learned counsels for the

parties.

15. In the considered opinion of this Court, the

impugned order passed by the learned Family Court

Hassan on 22/06/2016 does not require any

interference by this Court.

16. The alleged second marriage of the

Respondent Dr.B.N. Shivaswamy with Smt. Revathi @

Vedavathi for which appropriate legal proceedings have

been initiated by the present petitioner, Smt.

Nethravathi M.L. does not entitle her to implead the

said alleged second wife, Smt. Revathi @ Vedavathi

also as a party in the present Divorce Petition filed by

the Respondent husband, Dr.B.N. Shivaswamy.

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17. The present petitioner, Smt. Nethravathi

M.L. has not filed the said Divorce Petition on the

ground of alleged adultery by the Respondent husband

in which case, applying the above-cited Division Bench

judgments, perhaps the petitioner wife Smt.

Nethravathi M.L. could claim that even the adulterer

partner, viz.Smt. Revathi @ Vedavathi could be

impleaded in the Divorce Petition filed by her.

18. The case in hand is reverse one, where the

Respondent husband Dr.B.N. Shivaswamy has filed the

Divorce Petition under Section 13 (1) (i-a) (i-b) of the

Hindu Marriage Act on the ground of cruelty and

desertion. Merely because the Respondent Smt.

Nethravathi M.L. who is the petitioner before this

Court in her Statement of Objections to the said

Divorce Petition, has raised the ground of alleged

second marriage of Dr.B.N. Shivaswamy with

Smt.Revathi @ Vedavathi and therefore it amounts to
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an adulterous life led by the Respondent, Dr.B.N.

Shivaswamy, that does not entitle the petitioner Smt.

Nethravathi M.L. to seek necessarily the impleadment

of the said alleged second wife Smt. Revathi @

Vedavathi and a son born to her out of such alleged

illegal second marriage. The husband Dr.B.N.

Shivaswamy has not filed the Divorce Petition on the

ground of adultery under Section 13 (1)(i) of the Hindu

Marriage Act nor the petitioner Smt. Nethravathi M.L.

is claiming any Divorce on the ground of adultery under

Section 13 (1)(i) of the Act, as were the facts before the

Division Bench of this Court in the aforesaid two

decisions.

19. The parties to the case have to prove their

respective cases on the basis of evidence to be led by

them. They can not depend upon the evidence led by

the other side nor the strength or weakness thereof.

20. In a Divorce Petition under Section 13 of the

Hindu Marriage Act, the lis is essentially only between
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the two parties to the matrimony, viz. husband and the

wife. The specified grounds on which the divorce can be

obtained under Section 13 of the Act have to be

established by the Applicant or the petitioner who files

the Divorce Petition. The concept of necessary and

proper parties under Order 1 Rule 10 (2) of the Civil

Procedure Code cannot be widely construed to be

applied to such matrimonial dispute between the two

parties. It is not a Civil Suit in the nature of a property

dispute which is being decided by the Court below. But

it has to decide the fate of a Hindu marriage, whether it

is to be dissolved or not, on the established ground

under Section 13 of the Act or not.

21. The scope of such litigation cannot be

widened by the Court below on the concept of necessary

and proper parties that too by applying a case law in a

case under Section 13 (1)(i) of the Act to the cases under

Section 13(1)(i-a) (i-b) of the Act as argued by the
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learned Senior Counsel appearing for petitioner, Smt.

Nethravathi M.L. before this Court.

22. The remedy available to the complaining party

in such a case of alleged Bigamy either under Civil law

or Criminal law as may be available to such a party has

already been availed by the petitioner in the present

case, viz. Smt. Nethravathi M.L., i.e., a private

complaint in C.C.No.821/2012 and O.S.No.50/2014

which are admittedly pending trial in the competent

Courts.

23. The present petitioner Smt. Nethravathi M.L.

cannot claim as a matter of right that the said alleged

second wife, Smt. Revathi @ Vedavathi should also be

impleaded as a necessary or proper party in the present

Divorce Petition filed by the husband Dr.B.N.

Shivaswamy under Section 13(1)(i-a) (i-b) of the Act

on the ground of cruelty and desertion alleged to be

committed by the wife Smt. Nethravathi M.L.

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24. The principles applied by the learned Court

below to reject the said I.A.No.10 of the present

petitioner Smt. Nethravathi M.L. are, therefore, found

to be perfectly justified and requires no interference by

this Court under Article 226 of the Constitution of

India.

25. The judgments relied upon by the learned

counsel for the petitioner are of little help to the

petitioner wife and have no application to the facts of

the present case. The same are clearly distinguishable

on facts.

26. The present writ petition under Article 227 of

the Constitution of India is therefore, liable to be

dismissed. Accordingly it is dismissed with no order as

to costs.

Sd/-

JUDGE

BMV*

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