B. C. CHAKRABARTI, J.

( 1 ) THIS re-visional application at the instance of a co-respondent in a Matrimonial Suit is directed against an order rejecting her prayer for striking out her name from the category of co-respondent.

( 2 ) OPPOSITE party No. 1 instituted the suit for a decree of divorce against opposite party No. 2 on the ground of adultery under Section 27 of the Special Marriage Act, 1954. In this suit the wife opposite party No. 1 alleged acts of cruelty and adultery on the part of the husband opposite party No. 2. It is further alleged that the husband committed acts of adultery with the petitioner herein who was made a co-respondent in the suit. The wife also claimed damages against the co-respondent.

( 3 ) IN this suit, the petitioner co-respondent filed an application under Order 1, Rule 10 of the Civil P. C. for striking out her name. It was contended before the court below that there is no provision in the Special Marriage Act permitting joinder of a woman as a co-respondent in a wife's suit for divorce on the ground of adultery and that the Rules framed under the Act does not contemplate such a procedure and even if it intended to do so, it acted in excess of the powers conferred by the Act.

( 4 ) THE prayer was resisted by the wife upon a reference to Rule 10 of the Rules framed by the High Court. The learned Trial Judge overruled the contention of the petitioner co-respondent and rejected her prayer for striking out her name. Hence the revisional application.

( 5 ) MR. Dey Roze appearing on behalf of the petitioner argued that any Rule providing for impleading a woman as corespondent is ultra vires the Rule making power of the High Court conferred by Section 41 of the Act, that the power of the High Court in framing rules is limited by the provisions of Order 1, Rule 3 of the Code and the provisions of the Indian Divorce Act, that the wife has no legal form of relief available against a woman having or intending to have sexual intercourse with the husband and as such no legal proceedings can be instituted against such a woman. It was further contended that Rule 10 as framed by the High Court must be restricted in its application to a male co-respondent when read along with Rules 18 to 24 of the Rules.

( 6 ) THIS application has been seriously contested by the wife respondent No. 1.

( 7 ) IN order to appreciate the points involved it would be convenient to bear in mind the relevant provisions of the Special Marriage Act and the Rules framed thereunder.

( 8 ) SECTION 27 (1) (a) of the Act entitles either party to the marriage to present a petition for divorce on the ground that the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

( 9 ) UNLIKE the Indian Divorce Act there is no Special provision that upon such a petition presented by a husband, the petitioner shall be required to make the alleged adulterer a co-respondent unless excused. Section 41 of the Special Marriage Act, reads as follows:--"41. Power of High Court to make rules regulating procedure. (1) The High Court shall, by notification in the official Gazette, make such rules consistent with the provisions contained in this Act and the Code of Civil Procedure, 1908, as it may consider expedient for the purpose of carrying into effect the provisions of Chapter V, VI and VII. (2) In particular and without prejudice to the generality of the foregoing provision, such rules shall provide for - (a) the impleading by the petitioner of the adulterer as a co-respondent on a petition for divorce on the ground of adultery, and the circumstances in which the petitioner may be excused from doing so; (b) the awarding of damages against any such co-respondent; (c) the intervention in any proceeding under Chapter V or Chapter VI by any person not already a party thereto; (d) the form and contents of petitions for nullity of marriage or for divorce and the payment of cos

Click Here to Read the rest of this document