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IN THE HIGH COURT OF ORISSA
Arindam Sinha, M.S. Sahoo, JJ.
Parthasarathi Ojha - Appellant
Versus
Nisha Moharana - Respondent
MATA No. 176 of 2022
Decided On : 05-01-2024
DIVORCE - Hindu Marriage Act, 1955; Hindu Marriage and Divorce (Odisha High Court) Rules, 1956 - Sections 5, 13(1), 21 of the Hindu Marriage Act, 1955; Order I Rule 3 of the Code of Civil Procedure, 1908 - The court discussed the necessity of including a paramour as a party in divorce proceedings under Rule 5 of the Hindu Marriage and Divorce (Odisha High Court) Rules, 1956, which is derived from Section 21 of the Hindu Marriage Act, 1955. The court interpreted that while the rule mandates the inclusion of a paramour, exceptions exist where it may not be feasible. The court ultimately found that the family court's dismissal of the divorce petition on technical grounds was not warranted, leading to the granting of the divorce decree.
Fact of the Case:
The appellant-husband sought a divorce from the respondent-wife, which was initially rejected by the family court despite the wife having filed for divorce and requested the return of dowry articles and money. The husband alleged cruelty due to the wife's relationship with a paramour, but the family court dismissed the case for non-joinder of the paramour as a necessary party.
Finding of the Court:
The court found that while the husband established cruelty, the family court's insistence on including the paramour as a party was overly technical. The court noted that the wife had remarried and did not contest the appeal, implying her inability to substantiate her claims regarding dowry.
Issues: Whether the family court erred in dismissing the divorce petition for non-joinder of the paramour and whether the husband was entitled to a decree of divorce based on established cruelty.
Ratio Decidendi: The court held that the requirement to include a paramour as a necessary party under Rule 5 of the Hindu Marriage and Divorce (Odisha High Court) Rules, 1956, should be interpreted flexibly, allowing for exceptions where compliance is not feasible. The court emphasized that procedural rules should serve the ends of justice.
Final Decision: The appeal was allowed, and a decree of divorce was granted to the appellant-husband on the grounds of cruelty under Section 13(1) of the Hindu Marriage Act, 1955, with the family court's order being reversed.
JUDGMENT
Arindam Sinha, J.
Mr. Nayak, learned advocate appears on behalf of appellant-husband and presses for hearing of the appeal. He submits, his client is the husband, whose case for divorce was rejected by the family Court. The rejection was in spite of respondent-wife having filed application with prayer to allow the civil proceeding, to dissolve the marriage by decree of divorce on direction for petitioner to return admitted dowry articles and refund dowry amount of Rs. 4,60,000/-. He submits further, respondent-wife has since re-married.
2. In the appeal, respondent-wife was represented for a while by learned advocate, who since obtained leave to retire on no instruction from her. We reproduce below paragraph 3 from order dated 23rd November, 2023 and paragraphs 2 and 3 from order dated 13th December, 2023, are reproduced below.
Order dated 23rd November, 2023
'3. Mr. Debata submits, he does not have instruction on his client having remarried. His instructions are his client had conceded for the marriage being dissolved upon permanent alimony directed.
His client is consistent with her stand before this Court as well.
Order dated 13th December, 2023 2. Mr. Debata, learned advocate appears and submits, in spite of best efforts he has not been able to obtain instructions from his client, respondent-wife. He seeks leave to retire.
3. Leave to retire is granted.'
3. It appears from impugned judgment that the family Court had found appellant-husband to have established cruelty. The finding was regarding allegation, inter alia, respondent had a boyfriend/paramour, called Atul. In this connection, we reproduce below a paragraph from impugned judgment.
'In this instant case, role of Atul is brought to the knowledge of the petitioner by this court vide order dated 12.07.2022. It is clarified by the ld. Counsel on 02.08.2022 that the petitioner got name of boyfriend of the respondent during course of trial.
Hence, it need not to implicate him as a party. After hearing submissions of learned counsel, the record was posted for judgment. The petitioner was given ample opportunity to clarify the reasons for non-implicating boyfriend of the respondent, but he has failed to do so in accordance to Section 5 of Hindu Marriage and Divorce (Odisha High Court) Rules 1956. Therefore, this court feels that though cruelty is established against the respondent, but a decree of divorce cannot be granted in absence of a proper party to this proceeding. Hence, this proceeding should be dismissed for non-joinder of proper party.' (emphasis supplied)
4. Appellant has also brought on record in this appeal by way of an affidavit photographs, which he contends depict respondent-wife getting married to another. This appears to be reason why she had earlier filed petition in the family Court conceding for the divorce but seeking return of admitted dowry articles and dowry amount of Rs. 4,60,000/-. On query from Court Mr. Nayak submits, his client does not admit to having any dowry articles or money. Respondent-wife is not before us to contend otherwise.
5. In MATA no. 36 of 2023 (Harekrushna Behera v. Manasi Jena) dealt with by us on judgment dated 3rd January, 2024, we had considered rule 5 in Hindu Marriage and Divorce (Odisha High Court) Rules, 1956. We reproduce below paragraphs 5, 6 and 7 from said judgment.
'5. Claim of appellant-husband for dissolution of the marriage was rejected, as aforesaid, on technicality of not having added the paramour as a necessary party, required by rule 5 in Hindu Marriage and Divorce (Orissa High Court) Rules, 1956. It is apparent the rules were made in exercise of power under section 21 in Hindu Marriage Act, 1955. The provision is reproduced below.
'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 (5 of 1908)'
6. Code
AI
The necessity of including a paramour in divorce proceedings can be dispensed with under certain circumstances, emphasizing that procedural rules should not obstruct the pursuit of justice.
Where husband alleges adultery and dissolution of marriage under clause (i) in Section 13(1) of Hindu Marriage Act, 1955, he cannot be said to have right of relief against paramour.
Technicalities of non-joinder of a paramour do not impede the adjudication of divorce claims on grounds of cruelty, emphasizing substantive justice in family law proceedings.
Judgment on admission – Decree under Order 12 Rule 6 of CPC can be made only if there is unequivocal admission of facts by party without reserving any rights.
A divorce petition can proceed without adding an alleged adulterer as a party unless the decree specifically seeks to address adultery as a ground for divorce.
Divorce – Merely because proceeding has been ordered to be decided ex parte, does not mean that proceeding has to be decreed automatically.
The court established that in divorce proceedings under the Hindu Marriage Act, the absence of the respondent and credible allegations of cruelty justify the dissolution of marriage, applying a stand....
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