The alleged adulterer must be impleaded as a co-respondent in divorce petitions based on adultery if known, to ensure fairness and discourage reckless allegations.

JUDGMENT :

(G.R. SWAMINATHAN, J.)

The question that calls for consideration is whether in a petition filed for divorce on the ground of adultery under the Hindu Marriage Act, 1955 , the alleged adulterer must be impleaded as a co-respondent ?.

2. The Division Bench of the Delhi High Court in the decision reported in 2024 SCC OnLine Del 5078 ( Shivi Bansal vs. Gaurav Bansal ) held that the alleged adulterer is not a necessary party as a decree can be passed in his or her absence and that the adulterer is not a proper party since the issue concerning adultery can be adjudicated without making the adulterer a party to the cause. This was followed by the Madhya Pradesh High Court in the decision reported in 2024 LiveLaw (MP) 240. The Karnataka High Court in the decision reported in AIR 2003 Karnataka 508 ( Arun Kumar Agarwal vs. Radha Arun ) took the view that the alleged adulterer is not a necessary party but a proper party. However, the Andhra Pradesh High Court in the decision reported in AIR 2000 Andhra Pradesh 328 ( Mirapala Venkata Ramana v. Mirapala Peddiraju ) declared that the adulterer is a necessary party and failure to implead him will lead to non-suiting the petitioner. The Division Bench of the Andhra High Court followed the judgment of the Allahabad High Court in Udai Narain Bajpai v. Smt. Kusum Bajpai (AIR 1975 All 94). The recent decision of the Telengana High Court in Phani Raghavalu Meduri vs. Lakshmi Meduri ( CRP No.2192 of 2023 dated 08.04.2024 ) is also on the same lines.

3. As many as three Single Judge Benches of the Madras High Court have taken the view that the petition would be not maintainable if the alleged adulterer is not impleaded. [(2001) 1 MLJ 318 ( Easwaran Vs. Mani), 2005 (2) CTC 28 (M.Mallika Vs.M.Raju) and C.M.S.A.No.16 of 2013, dated 08.02.2021 (Kala Vs. E.N.Ramesh].

4. We propose to take a nuanced stand. The Madras High Court had framed Rules under Section 21 of the Hindu Marriage Act, 1955 to regulate the proceedings under the Act. Rule 4(vi) (1) reads as follows : -

“4.Contents of petition:-

(a) Every petition shall state -

(i) to (v) xxxxxxxx

(vi) If the petition for divorce or judicial separation, the matrimonial offence alleged or other grounds upon which the relief is sought, together with the full particulars thereof so far as such particulars are known to the petitioner, e.g :

(1) In the case of adultery, the specific acts of adultery and the occasion when and places where such acts committed, together with the name and address of the person with whom such adultery was committed.”

The Rule does not mandate that the alleged adulterer must also be made a co-respondent.

5. It would be useful to have a look at the statutory scheme applicable in this regard under the Divorce Act, 1869 . Section 11 of the said Act is as follows :

“[11. Adulterer or adulteress to be co-respondent.— On a petition for dissolution of marriage presented by a husband or wife on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a co-respondent, unless the petitioner is excused by the Court from so doing on any of the following grounds, namely:—

(a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is leading an immoral life and that the petitioner knows of no person with whom the adultery has been committed;

(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it;

(c) that the alleged adulterer or adulteress is dead.].”

The Andhra Pradesh High Court as well as the Karnataka High Court have held that Section 11 of the Divorce Act is mandatory and that the petitioner must obtain leave of the court for not impleading the alleged adulterer as co-respondent.

6. We can conceive of cases and situations wherein one of the spouses failed to keep the vows of marital fidelity. It could be a solitary lapse. He or she could have gone for what is called in current