IMPORTANT POINT
Divorce— Adultery—Necessary Party—As per the Rule 10 of the Hindu Marriage (Punjab) Rules 1956, the adulterer is a necessary party and petition filed on the ground of adultery cannot proceed without impleading him as a party.

R.S. Madan, J.:- This is a husband’s appeal filed against the judgment and decree dated 28.8.2001 passed by Shri K.C.Puri, the then Additional District Judge, Amritsar, in a Petition bearing No.195/1992, under Section 13 (1) of the Hindu Marriage Act, 1955, as amended for dissolution of marriage by a decree of divorce, which was dismissed.

2. In brief the facts of the case are that the appellant- husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce against the respondent-wife on the ground of desertion and cruelty. But later on by way of amendment, ground of adultery was also added after about a period of four years of filing of the divorce petition.

3. The marriage between the parties was solemnised on 11.5.1981 according to Hindu rites and ceremonies at Sujanpur, District Gurdaspur. Both the parties resided together as husband and wife and cohabited with each other at Amritsar. Out of this wed-lock, two children, namely, Rachna and Raghurai were born. The case of the appellant that right from the inception of marriage, the conduct of the respondent was very cruel. She always used to insult and abuse him in front of his friends and relatives. Despite this, he had been tolerating the act of the respondent with a hope that better sense would prevail upon her with the passage of time and she would improve herself but all in vain. While highlighting the acts of cruelty, the appellant alleged that the respondent has been frequent visitor to her parents’ house soon after the inception of the marriage and without the consent of the appellant which was not to the liking of the appellant. It was also alleged that the respondent left the house of the appellant in January 1985 and continuously remained at her parent’s house for a period of 3½ years. The appellant was also hurt by the respondent by her unbearable words who used to state that she was married against her wishes and she does not like to keep marital relationship with him. It was alleged that the respondent stayed for 7/8 days soon after the marriage with the appellant and then went back to her parents’ house from where she returned after 1½ months.

4. On 8.7.1988 the father and brother of the respondent gave a writing in which it was mentioned that she had left the house of the appellant 3½ years back leaving behind the children at the mercy of the appellant. During this period, her attitude and conduct was worst then before and she refused to share bed with him. The appellant had filed a petition for divorce on 13.2.1990 in the court of Additional District Judge, Amritsar and notice was given to the respondent for 4.4.1990. However, during the pendency of this petition, a panchayat was convened on 26.5.1990 in which an agreement was effected between the parties that the respondent should be provided a separate accommodation as well as Rs.900/- per month as maintenance as she refused to live with him. She was given residence in House No.3429/1, Gali Kakezian, Katra Baghian, Amritsar. The divorce petition was dismissed as withdrawn having been compromised.

5. The appellant started suspecting Ashok Kumar and Sarwan Singh employees of the police department having illicit relations with the respondent. According to the appellant, on 2.8.1992 he caught red handed Ashok Kumar with the help of his friends, namely, Sunil Kumar, Gurdial and Billa etc. and inhabitants of the mohalla. Due to this act of the respondent, the appellant had received acute mental shock and agony on his mind. He, thus, pleaded that this incident is an act of mental cruelty as well as that the respondent is living in adultery.

6. The respondent-wife on receipt of notice of divorce petition, contested the same by filing written statement and denied all the allegations made therein. She, however, submitted that she was forced to go to her parents’ house for delivery of child as the appellant and his family members were not willing to tak