The necessity of specific pleadings and evidence in adultery cases, and the requirement to name and implead the alleged paramour in divorce proceedings.

1. This revision has been filed against the interlocutory order passed in HMOP.No. 30 of 2002, impleading the second respondent herein as co-respondent.

2. The first respondent herein filed the above OP for divorce on the grounds of adultery, cruelty and desertion. The petitioner herein filed her counter denying all the allegations. Subsequently, the first respondent filed this application in I.A.No. 31 of 2003 to implead the second respondent alleging that he is the paramour and that his wife (the petitioner herein) is living with him in adultery. According to the first respondent, the presence of the second respondent was necessary for effective adjudication for the main controversy.

3. The petitioner herein resisted the said application on the ground that it is not necessary to implead the second respondent and the first respondent having failed to raise specific pleadings and having fai1ed to set out specific acts of adultery and having failed to speak about the same when he was in the box as a witness, cannot now fill up the lacuna in his case by impleading the second respondent.

4. The Court below came to the conclusion that the first respondent had stated in the main petition, that the petitioner has developed illicit intimacy with her sister’s husband (the 2nd respondent herein) and was continuously living in adultery with her sister’s husband and that in Ex.R-2, reply notice the name of the alleged paramour is specifically mentioned, but in the petition, as well as in the box, the first respondent had only stated that the petitioner was living an adulterous life with her sister’s husband without naming the second respondent. The Court below came to the conclusion that without impleading the second respondent, the issue cannot, be fully decided. The Court below referred to the decision in Easwaran v. Mani, 2001 (1) MLJ 318, in support of its conclusion.

5. The learned counsel appearing for the petitioner would submit that while the impleadment of the co-respondent is made mandatory in the provisions of the Indian Divorce Act, the legislature thought it fit not to introduce a similar Section in the Hindu Marriage Act and therefore, it is not necessary to implead the second respondent. The learned counsel would also submit that the allegations in the pleadings are vague, the oral evidence is also vague and now this petition has only been filed to harass the petitioner.

6. The learned counsel also submitted that in Easwaran v. Mani , 2001 (1) MLJ 318, the observation was only a passing observation and that was not the ratio of the decision and the learned counsel referred to the following sentence in paragraph-13 of the judgment:

“The person with whom the wife had illicit relationship, should have been named and made a party in the proceedings,”

The learned counsel submitted that this cannot be construed to mean that in all cases where adultery is alleged, the alleged paramour must be made a co-respondent.

7. The learned counsel referred to the decision The Secretary, Saliar Mahajana Higher Secondary Schools, Aruppukottai, Virudhunngar District v. G.Subburai and others, 2005 (1) CTC 8, where the First Bench of this Court had held that the decisions of Supreme Court laying down a principle of law will alone be precedent, having a binding effect on the High Court and directions issued by the Supreme Court without laying down any principle of law, are not precedents.

8. The learned counsel appearing for the respondent on the other hand submitted that in the pleadings it is clearly slated that the petitioner is having an adulterous relationship with her sister’s husband, who is none other than the 2nd respondent. The learned counsel submitted that the Court below had rightly held that the presence of the second respondent was necessary to adjudicate the dispute.

9. The extract from the judgment, in Easwaran v. Mani, 2001 (1) MLJ 318, was not just a passing comment and this is seen from the following paragraphs