The duty of the Court to issue notice to the Respondent and co-Respondent, if any, in consonance with the principles of natural justice.

Alok Aradhe, J.

1. Shri R.K. Sanghi, learned Counsel for the Petitioner. Shri Greeshm Jain with Shri Dilip Parihar, learned Counsel for Respondent No. 2.

2. With the consent of learned Counsel for the parties, the matter is heard finally.

3. In this writ petition under Article 227 of the Constitution of India, the Petitioner has challenged the legality and validity of the order dated 7-12-2010 passed by the trial Court by which the Petitioner has been directed to delete the name of Respondent No. 2 from the cause title of the petition.

4. Brief facts leading to filing of the writ petition are that Petitioner had filed a petition seeking divorce against Respondent No. 1 on the ground of adultery and cruelty. In the petition filed by the Petitioner under Section 13 of the Hindu Marriage Act the Petitioner impleaded the Respondent No. 2 as Respondent in the petition. However, the trial Court held that Section 13 of the Hindu Marriage Act, 1955, relates only to proceedings of divorce between husband and wife and, therefore, the third party cannot be impleaded in the aforesaid proceedings. It was further held that presence of Respondent No. 2 is not necessary to pass an effective decree in the case. Accordingly, the Petitioner was directed to delete the name of Respondent No. 2 from the cause title.

5. Shri R.K. Sanghi, learned Counsel for the Petitioner has referred to Rule 2 as well as Rule 5 of the Rules framed by this Court under the provisions of Hindu Marriage Act. Learned Counsel for the Petitioner submits that under Rule 2(7)(e)(2), in a petition of divorce on the ground of adultery, rape or sodomy, the date and the place of the act or the acts and the name and address of the person or persons with whom these acts were committed by the Respondent are required to be mentioned. While referring to Rule 5 of the Rules, learned Counsel for the Petitioner has submitted that Rule 5 enjoins a duty on the Court to issue notice to the Respondent and co-Respondent, if any. Learned Counsel for the Petitioner has further submitted that in a petition based on adultery, the Court will have to record a finding that the spouse has voluntarily sexual intercourse with another person and, therefore, such a finding will adversely affect the reputation of a person who has alleged to have committed an adulterous act and, therefore, an adulterer is a proper party to the petition. In support of his submission, learned Counsel for the Petitioner has placed reliance on a Division Bench decision of Karnataka High Court in the case of Arun Kumar Agrawal v. Radha Arun and Ors. AIR 2003 Karn 508.

6. On the other hand, learned Counsel for Respondent No. 2 has submitted that in the absence of any provision in the Rules framed by this Court which requires that an adulterer should be made a party to the proceeding, it is not necessary to implead the adulterer as co-Respondent in the proceeding. In support of his submission, learned Counsel for the Respondent No. 2 has placed reliance in the case of Neelam Tiwari v. Sunil Tiwari 2009 (3) MPLJ 45 : 2009 (3) M.P.H.T. 215.

7. I have considered the submissions made on both sides. The question of addition of a party under Order 1, Rule 10 of the Code of Civil Procedure is generally of judicial discretion which has to be exercised in the facts and circumstances of a particular case. Where the Court is of the opinion that by adding a party it would be in a better position to effectively and completely adjudicate the controversy involved in the suit, in such a case the concerned person should be impleaded as a party in the proceeding. See: Razia Begum v. Sahebzadi Anwar Begum and Ors. AIR 1958 SC 886 Balraj Taneja and Anr. v. Sunil Madan and Anr. AIR 1999 SC 3381 and Ruma Chakraborty v. Sudha Rani Banerjee and Anr. AIR 2005 SC 3557. The distinction between necessary and proper party is also well settled in law. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absenc