The judgment establishes the importance of circumstantial evidence and the requirement for a preponderance of probability in proving adultery for the dissolution of marriage.

Meenakshi Madan Rai, J.

1. In the instant Appeal, the Appellant assails the Judgment and Decree dated 18-04-2015 of the Learned Judge, Family Court, East Sikkim at Gangtok, in Family Court (Civil) Case No. 83 of 2014, ordering dissolution of the marriage between the Appellant and the Respondent under Section 13(1)(i) of the Hindu Marriage Act, 1955 (for short "the Hindu Marriage Act").

2. Advancing his arguments before this Court, Learned Counsel for the Appellant put forth the grounds that there are no independent witnesses to the alleged adultery claimed to have been witnessed by the Respondent and his elder brother, which they failed to either photograph or videograph. That, according to the Respondent, he was informed by P.W.3, a well-wisher, that he had seen the Appellant entering her house along with one man at around 10.30 p.m., but the evidence of this witness is not reliable as before the Learned Family Court, P.W.3, deposed that earlier he had illicit relations with the Appellant. If such be the case, it cannot be fathomed as to how he could be the well-wisher of the Respondent. In the next leg of his argument, emphasising on the provisions of Order I Rule 10 of the Code of Civil Procedure, 1908 (for short "CPC"), it was contended that D.W.3, alleged to be in an adulterous relationship with the Appellant, is a necessary and proper party to the proceedings, but was not impleaded as a party on which ground alone, the impugned Judgment and Decree of the Learned Family Court is liable to be set aside. To fortify this submission, reliance was placed on the decision of the Hon'ble High Court of Andhra Pradesh in Smt. Ch. Padmavathi vs. Ch. Sai Babu, F.C.A. No. 21 of 2009 dated 12-09-2012, wherein it was, inter alia, held that, the alleged adulterer will be a proper party to a proceeding under Section 13(1)(i) of the Hindu Marriage Act.

3. It was urged that the Learned Family Court had also wrongly observed that there are satisfactory and convincing circumstantial evidence as well as direct evidence of the Appellant having extra marital relations with other persons and indulging in illicit sexual relationship with them, when to the contrary, the Respondent lives in adultery with another lady. That, the Respondent had earlier filed a Petition for Divorce on grounds of "Cruelty", but as the matter was dismissed on 26-03-2013, the instant matter was filed subsequently reflecting an ulterior motive and mala fide intention. It is prayed that the impugned Judgment and the resultant Decree, dated 18-04-2015 be set aside.

4. Per contra, the arguments put forth by Learned counsel for the Respondent is that, in the first instance there is no shortcoming in the impugned Judgment of the Learned Family Court which has made its decision after analysing the evidence on record. In the next limb of his argument, it was expostulated that although Order I Rule 10 of the CPC requires that the Court at any stage of the proceedings may strike out or add any person as a Plaintiff or Defendant to effectually and completely adjudicate the matter but one cannot lose sight of the mandatory provision of Order I Rule 13 of the CPC, which requires that all objections on grounds of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity. The Appellant cannot be heard to say belatedly, at the stage of Appeal, that the alleged adulterer ought to have been added as a necessary party. That, therefore, in view of the lack of substance in the Appeal, the same be dismissed.

5. We have heard the rival arguments of Learned Counsel at length and given due and anxious consideration to the same. We have also carefully perused all relevant documents on record including the evidence and the impugned Judgment.

6. In order to assess the matter in its correct perspective, it would be necessary to first consider the averments made by the parties before the Learned Family Court. According to the Respondent, he was married to the Appella