R. V. RAVEENDRAN, J.

( 1 ) THE appellant and first respondent are respectively the husband and wife. The appellant filed M. C. No. 521/2000 before the Family Court, Bangalore under S. 13 (1) (i) of the Hindu Marriage Act, 1955 praying that a decree for divorce against the first respondent with costs and such other reliefs the Court may deem fit in the circumstances of the case. He impleaded the alleged adulterer (second respondent herein) as second respondent in M. C. No. 521/2000.

( 2 ) SECOND respondent filed I. A. No. IV under Order 1, Rule 10 (2) of CPC to delete him from the petition. Second respondent contended that no relief has been sought against him. He also contended that the Hindu Marriage (Karnataka) Rules, 1956 do not contemplate or require that the alleged adulterer should be impleaded as a respondent in a proceeding under S. 13 (1) (i) of H. M. Act. Therefore he submitted that he is neither a proper party nor a necessary party.

( 3 ) APPELLANT resisted the said application on the ground that the petition being one under S. 13 (1) (i) for divorce, the adulterer is a necessary and proper party to the petition. The Family Court, by order dated 4-4-2001 allowed I. A. IV and directed the petitioner (Appellant herein) to delete the Second Respondent. The Family Court held that appellant has not sought any relief against the second respondent and therefore he is neither a necessary nor a proper party to the proceedings.

( 4 ) FEELING aggrieved, appellant filed W. P. No. 23138/2001. The learned single Judge dismissed the petition by order dated 31-8-2001 (reported in 2001 AIHC 4569 : 2001 AIR - Kant HCR 2639 ). He noticed that several High Courts have framed rules under Ss. 14 and 21 of the Hindu Marriage Act, requiring the adulterer to be made as a party to proceedings under S. 13 (1) (i), that the Karnataka Rules do not contain such a provision and suggested that Karnataka High Court should also frame a specific rule for impleading adulterer as a party. He was of the view that in the absence of such a rule in Karnataka, an adulterer cannot be impleaded as a party, unless some relief was sought against him. Feeling aggrieved, appellant has filed this appeal. The question that therefore arises for consideration is whether a person impleaded as a co-Respondent in a petition under S. 13 (1) (i) of Hindu Marriage Act, 1955, as alleged adulterer, can seek deletion on the ground that no relief is sought against him.

( 5 ) THE appellant who appears in person contends that in the absence of any rules, the question whether a person is a necessary or proper party will have to be decided with reference to the provisions of Rules 3, 5, 7 and 10 of Order 1 CPC. He submitted that the principles relating to impleading of parties make it clear that an adulterer is a proper, if not necessary party to a proceeding under Section 13 (1) (i) of Hindu Marriage Act. He submits that if there was a rule in the Hindu Marriage (Karnataka) Rules, 1956, requiring a petitioner in a petition under S. 13 (1) (i) to implead an adulterer, then the adulterer would have been a necessary party; and in the absence of such a rule, the adulterer is a proper party and the petitioner has the option of either impleading or not impleading him. It is contended that once the petitioner chooses to implead as a Co-Respondent, the person who according to him is the adulterer, he being a proper party cannot be deleted at the instance of such Respondent, under Order 1 Rule, 10 (2) CPC.

( 6 ) SECTION 13 (1) (i) provides that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. A petition under S. 13 (1) (i) necessarily therefore involves an allegation of voluntary sexual intercourse by the sp

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