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2001 Supreme(Kar) 869
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
R. Gururajan, J.
Arun Kumar Agarwal —Appellant
Vs.
Mrs. Radha Arun and another —Respondent
Writ Petition No. 23138 of 2001
Decided on : 31-08-2001
Advocate Appeared:
Mr. A.Y.N. Guptha, J. Aravind Babu, for the Appellant
The absence of specific rules in Karnataka for impleading an adulterer as a co-Respondent, as seen in other High Court Rules, influenced the court's decision.
Headnote:
Adultery - Divorce - Hindu Marriage Act, Section 21, Indian Divorce Act, Section 11 - The court discussed the application of the Code of Civil Procedure in proceedings under the Hindu Marriage Act, the absence of specific rules in Karnataka for impleading an adulterer as a co-Respondent, and the provisions of other High Court Rules allowing for the inclusion of adulterers as co-Respondents. The court rejected the petition and suggested the need for specific rules in Karnataka similar to those in other High Courts.
Fact of the Case:
The Petitioner sought a divorce on the ground of adultery by the 1st Respondent and had included the 2nd Respondent as a party. The Family Court allowed the 2nd Respondent's application to strike out/delete his name from the petition, leading to the Petitioner's challenge of this order.
Finding of the Court:
The court found that the absence of specific rules in Karnataka for impleading an adulterer as a co-Respondent, as seen in other High Court Rules, justified the Family Court's decision to allow the application. The court rejected the petition and suggested the need for specific rules in Karnataka similar to those in other High Courts.
Issues: The main issue was whether the 2nd Respondent, an adulterer, should be made a party to the divorce proceedings, and the applicability of the Code of Civil Procedure in such cases.
Ratio Decidendi: The court's decision was based on the absence of specific rules in Karnataka for impleading an adulterer as a co-Respondent, as seen in other High Court Rules, and the application of the Code of Civil Procedure in proceedings under the Hindu Marriage Act.
Final Decision: The petition was rejected, and the court suggested the need for specific rules in Karnataka similar to those in other High Courts.
R. Gururajan, J.—The Petitioner-husband is challenging an order dated 4.4.2001 passed on IA-IV in MC No. 521 of 2000 by the II Additional Principal Judge Family Court, Bangalore.
2. The Petitioner filed a petition seeking for a divorce at the hands of the Family Court on the ground of adultery by the 1st Respondent in the matter. He has arrayed the 2nd Respondent as a party to the proceedings before the Family Court. The 2nd Respondent filed an application under Order 1, Rule 10 of Code of Civil Procedure to strike out/delete his name from the petition. The same was opposed. After hearing, the learned Family Court Judge, in a detailed order, has allowed the IA, thereby a direction is issued to strike out/delete the name of the 2nd Respondent from the petition. This order is challenged in this petition.
3. Heard Sri A.Y.N. Guptha, learned Counsel appearing for the Petitioner.
4. Sri Guptha, learned Counsel emphatically argues before me that the learned Judge has committed an error in allowing the IA petition. He refers to Section 21 of the Hindu Marriage Act and Section 11 of the Indian Divorce Act. He further argues that the 2nd Respondent being an adulterer has necessarily to be made a party and no prejudice as such is caused in the matter. He refers to me the various rules framed by various High Courts in this regard. In conclusion, he wants this Court to set aside the order of the Family Court.
5. After hearing the learned Counsel for the Petitioner, I have carefully perused the impugned order. Admittedly, the impugned order is an order allowing the petition filed under Order 1, Rule 10 of Code of Civil Procedure. The Hindu Marriage Act is a Central Act providing for a dispute with regard to marriages amongst Hindus. It applies to all the Hindus in the matter of marriage. The Act applies:
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Vorashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) to any person who is a Buddhist, Jain or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
The Act provides for restitution of conjugal rights in terms of Section 9 judicial separation in terms of Section 10, nullity of marriage and divorce and void marriages in terms of Section 11 and voidable marriages in terms of Section 12. The Act further provides for divorce in terms of Section 13 of the Act. It takes care of all marital problems arising for Hindus. The Hindu Marriage Act provides for a petition being filed under Section 19 of the Act. Section 20 of the Act provides for contents and verification of the petition. Section 21 provides for application of Code of Civil Procedure. The said Section reads as under:
Section 21. Application of Act 5 of 1908.-Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.
6. A careful reading of the said Section would show that subject to the rules as the High Court may make on its behalf, the proceedings are regulated by Code of Civil Procedure. In the case on hand, rules have been framed in excise of powers conferred by Sections 14 and 21 of the Hindu Marriage Act by the Karnataka High Court. The said rules provide for form of proceedings, Interlocutory application, cause title, contents of petition, copies for service with process, leave to present a petition before expiration of three years, notice of petition, custody of children, costs and pleader's fee and security for costs. There is no specific rule available in the State of Karnataka in terms
