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Andhra Pradesh High Court
Judges : P.RAMACHANDRA RAJU
Jeedigunta Ananda Lakshmi - Appellant
Versus
Jeedigunta Bhaskara Narasimham - Respondent
Decided On : 09-03-74
HINDU MARRIAGE ACT - SECTION 13 - DIVORCE - ADDITION OF PARTY - INTERESTED PARTY - NECESSARY PARTY - COURT'S DISCRETION - INTERESTS OF JUSTICE.
Fact of the Case:
A third party, who married the husband after he obtained an ex parte divorce decree, sought to be added as a party to the divorce proceedings between the husband and his first wife. The ex parte decree was later set aside, and the divorce petition was restored to file for disposal afresh.
Finding of the Court:
The court held that the petitioner was a necessary party to the divorce proceedings and should be added as a party. The court noted that the petitioner had a vital interest in the outcome of the petition for dissolution of the marriage between the husband and his first wife, as her marriage to the husband would be affected by the outcome of the petition.
Issues: Whether the petitioner, who married the husband after he obtained an ex parte divorce decree, was a necessary party to the divorce proceedings between the husband and his first wife.
Ratio Decidendi: The court relied on Section 13(1) of the Hindu Marriage Act, which provides that any marriage may be dissolved by a decree of divorce on any of the grounds mentioned therein. The court noted that there were no words like "between party and party" in Section 13(1), as there were in Section 45 of the Indian Divorce Act, which was the subject of the decision in Ramsay v. Boyte. The court also relied on Order 1, Rule 10(2) of the Code of Civil Procedure, which provides that the court may add a party whose presence before the court may be necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit.
Final Decision: The court allowed the civil revision petition and directed the lower court to add the petitioner as a party to the divorce proceedings.
( 1 ) THE third party who wants to come on record in O. P. No. 135 of 1968 on the file of the District Court, Eluru, is the petitioner. The O. P, is filed under Section 13 of the Hindu Marriage Act for divorce by a husband against his wife, respondents 1 and 2 herein, Originally, a decree for divorce was passed ex parte on 11-3-1969. After more than one year, that is, the time to be elapsed from the date of decree for divorce before either party to the dissolved marriage can validity marry again, on 11-4-1970, the petitioner was married by the: 1st respondent. Subsequently, on an application filed by the 2nd respondent, to which the present petitioner was not made a party, the ex parte decree of divorce was set aside, ultimately, by this Court. It is after the ex parte divorce decree was set aside and O. P. was restored to file for disposal afresh, the petitioner has come forward with the application in question under Order 1, Rule 10 (2) of the Code of Civil Procedure to come on record, alleging that she married the 1st respondent on 11-4-1970 in Madras and ever since she has been living with him as his legally wedded wife. The 1st respondent married her stating that he had obtained divorce from the 2nd respondent in O. P. No. 135/68. She learnt now that at the instance of the 2nd respondent, O. P. No. 135 of 1968 is revived and is pending trial. She is vitally interested in the matter as the legally wedded wife of the 1st respondent. It is, therefore, necessary in the interests of justice that she may be added as 2nd respondent in the O. P. as otherwise, she will suffer serious and irreparable loss.
( 2 ) THE lower Court dismissed the application by passing a very short order as hereunder:"the petitioner is neither a necessary nor a proper party to the main original petition. The petition is, therefore, dismissed. "
( 3 ) IT is provided under Section 21 of the Hindu Marriage Act, that subject to the other provisions contained in the Act and to such rules as the High Court may make in that behalf, all proceedings under the Act should be regulated, as far as may be by the Code of Civil Procedure 1908. Therefore, Order 1, Rule 10 (2) which provides for addition of parties, is applicable to the proceedings under the Hindu Marriage Act. In support of his submission that the petitioner is not a necessary party to the divorce proceedings between respondents 1 and 2 Shri V. Venkatramaiah learned counsel for the 2nd respondent, has placed reliance on the decision in Ramsay v. Boyte, (1903) ILR 30 Cal 489, which had arisen under the Indian Divorce Act. It was held therein that in a wifes suit for divorce against the husband on the ground of adultery, the Court has no power under the Indian Divorce Act to allow, the alleged adultress to intervene. The relevant section in the Indian Divorce Act is Section 45, which is in the following, terms:"subject to the provisions herein contained all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure. "the Calcutta High Court, in coming to that conclusion, laid stress on the words in Section 45 of the Indian Divorce Act: "all proceedings under this Act between party and party. " In the present Section 13 of the Hindu Marriage Act, no such language was used by the legislature. It is provided under Section 13 (1) of the Hindu Marriage Act that any marriage on a Petition presented by either the husband or the wife, be dissolved by a decree of divorce on any of the grounds mentioned therein. There are no words like "between party and party" as in Section 45 of the Indian Divorce Act. In the decision in Dorothy E. Stuart v. Vernon H. Stuart, ILR 57 All 884 = (AIR 1936 All 488), the Allahabad High Court, referring to the Calcutta decision mentioned above, expressed a doubt that the matter is not tree from difficulty. The learned Judge of the Allahabad High Court said that in his opinion it is clearly in the interests of justice that
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