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2019 Supreme(Kar) 2154
IN THE HIGH COURT OF KARNATAKA
H.T. NARENDRA PRASAD, J.
Sri Shivanand @ Shivappa Chinnappa Havaragi - Appellant
Versus
Smt gangamma s. Havaragi - Respondent
Writ Petition No. 37534 of 2013(GM-FC)
Decided on : 04-01-2019
Advocate Appeared:
For the Appellant :Sri. T.A. Chandrasekhara, Advocate
For the Respondent:Shri P. Prasanna Kumar, Advocate
Headnote:
Civil Procedure Code,1908 - Rules 3, 5 and 10(2) - Order,1 - Hindu Marriage Act, 1955 - Section 13(1)(i)(ia)(ib) - Relief claim - Marriage was solemnized - Petitioner and respondent are husband and wife and their marriage was solemnized on Temple District married life of petitioner and respondent was happy for hardly one month - Out of their wedlock one son Master was born and one daughter was born petitioner was shifted to Bangalore with a good hope that respondent may mend her attitude and behavior - But to his shock and surprise owner of said house forced to vacate house and got vacated within a period of one month because of the attitude and behavior of respondent she started neglecting petitioner and abused him with utmost filthy language besides manhandling pulling and pushing started shouting at petitioner in public place/road/in-front of house - In-spite of several opportunities respondent did not mend herself and she was not ready and willing to cooperate with petitioner – Held, Court may at any stage of proceedings order that name of any party improperly joined as defendant be struck out or order addition of any person who ought to have been joined as defendant or whose presence before Court may be necessary in order to enable Court effectively and completely to adjudicate upon and settle all questions involved in suit plaintiff or petitioner is bound to implead all those who are 'necessary parties - He is also entitled to or at liberty to implead in a suit all parties who are 'proper parties - Though these terms are not defined in Code it is well-settled that persons who ought to have been joined that is persons in whose absence no effective decree at all can be passed are necessary parties - In other words those whose presence is absolutely necessary for grant of reliefs claimed in a suit are necessary parties - On other hand all persons whose presence before Court is necessary to enable it to effectually and completely adjudicate upon and settle all questions involved in suit are proper parties Court has to decide whether spouse of petitioner had voluntary sexual intercourse with another person by adding such person (alleged adulterer) as a respondent Court would be in a better position to effectually and completely adjudicate upon controversy Family Court and Single Judge merely concentrated no relief was sought against second respondent - They therefore considered only whether adulterer is a necessary party to a petition seeking divorce on ground of adultery but completely ignored that alleged adulterer is a proper party - Petition dismissed
JUDGMENT :
H.T. Narendra Prasad, J. - This writ petition is directed against the order dated 6.7.2013 passed by the VI Addl. Prl. Judge, Family Court, Bangalore on I.A. No. 2 in M.C. No. 3026/2012.
2. Brief facts of the case:
Petitioner and respondent are the husband and wife and their marriage was solemnized on 12.2.1999 at Ambabhawani Temple, Talikoti, Muddebihal, Bijapur District. The married life of petitioner and respondent was happy for hardly one month. Out of their wedlock, one son Master Ankit was born on 28.5.2002 and one daughter Miss Vani was born on 31.7.2003. The petitioner learnt that the respondent had illicit relationship with one Sri. Bhimappa Sharanappa Bommanahalli, who is the son of sister of her mother and with another person Sri. Basavaraj S Dangi. Even after the birth of the child, respondent continued with her extra marital relationship. When such relationship was continued, he brought to the notice of the elders. The elders held panchayat and as per their advice the matrimonial house of the petitioner was shifted to Vidyaranyapuram, Bangalore with a good hope that the respondent may mend her attitude and behaviour. But to his shock and surprise, the owner of the said house forced to vacate the house and got vacated within a period of one month because of the attitude and behaviour of the respondent. Thus, the petitioner was forced to relocate to Vishveshwaraiah Layout, Bangalore. It is the further case of the petitioner that during July 2017, she started neglecting the petitioner and abused him with utmost filthy language besides manhandling, pulling and pushing started, shouting at petitioner in public place/road/in-front of the house. In-spite of several opportunities, the respondent did not mend herself and she was not ready and willing to cooperate with the petitioner. Hence, the petitioner left with no other option filed a petition before the Family Court under Section 13(1)(i)(ia)(ib) of the Hindu Marriage Act, 1955 in M.C. No. 3026/2012. In that petition, the petitioner has specifically taken up contention in paragraphs 5 and 7 regarding respondent having illicit relationship with one Sri. Bhimappa Sharanappa Bommanahalli and Sri. Basavaraj S Dangi. Subsequently, he filed an application under Order 1, Rule 10(2) of CPC to implead Sri. Bhimappa Sharanappa Bommanahalli and Sri. Basavaraj S Dangi. The application came to be numbered as I.A. No. 2. The Family Court, Bangalore by order dated 6.7.2013 has rejected the said application filed by the petitioner. The order dated 6.7.2013 passed by the Family Court, Bangalore is produced at Annexure-A. Being aggrieved by the same, he has filed this writ petition.
3. The learned counsel for the petitioner submits that during the pendency of the application before the Family Court, Sri. Bhimappa Sharanappa Bommanahalli died and hence, the learned counsel for the petitioner is not pressing the impleading application in respect of the deceased Sri. Bhimappa Sharanappa Bommanahalli. He further contended that this Court in the case of Arun Kumar Agarwal vs. Smt. Radha Arun and another (ILR 2004 KAR 808) had held that the presence of adulterer before the Court is necessary to enable it to effectually and completely adjudicate upon to settle all questions involved in the petition. The learned judge of the Family Court has not considered the said judgment of this Court and has rejected the application filed by the petitioner vide order dated 6.7.2013. Therefore, he seeks for setting aside the said order passed by the Family Court.
4. Heard the learned counsel for the petitioner and perused the records.
5. It is not in dispute that the petitioner and respondent were husband and wife and their marriage was solemnized on 12.2.1999 at Ambabhawani Temple, Talikoti, Muddebihal, Bijapur District and out of their wedlock, one son Master Ankit and one daughter Miss. Vani were born. The petitioner had filed a petition in M.C. No. 3026/2012 under Section 13(1)(i)(ia)(ib) of the Hi
