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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
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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
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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.
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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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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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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*