IMPORTANT POINTS
(1) Divorce suit – Divorce petition could not be rejected merely because a part of cause of action was not viable in law if Court otherwise had jurisdiction to entertain the action.
(2) Divorce suit – Alleged adulterer is not a necessary party as decree can be passed in his/her absence.

JUDGMENT (ORAL)

Rajiv Shakdher, J.—This appeal is directed against the judgment and order dated 03.06.2024 passed by Mr Manish Khurana, learned Judge, Family Court, East District, Karkardooma Courts, Delhi.

2. The appellant/wife is aggrieved by the fact that the application moved by her under Order VII Rule 11 of the Code of Civil Procedure, 1908 [in short, “CPC”] was dismissed.

3. Counsel for the appellant/wife submits that the divorce action instituted by the respondent/husband against the appellant/wife was pivoted on three grounds, i.e., cruelty, adultery, and desertion.

4. It is the submission of the counsel for the appellant/wife that in so far as the desertion is concerned, the pre-requisites of Section 13(1)(ib) of the Hindu Marriage Act, 1955 [in short, “HMA”] were not fulfilled. In other words, it is emphasized that divorce on the ground of desertion is available only if the appellant/wife would have deserted the respondent/husband for not less than two (2) years immediately preceding the presentation of the petition.

5. It is, thus, asserted by the counsel for the appellant/wife that since the appellant/wife had lived and cohabited with the respondent/husband till July 2022 and the petition was filed in and about 25.05.2023, the ground under Section 13(1)(ib) of the HMA was not available to the respondent/husband to seek a divorce.

6. In this context, we may note that in so far as the respondent/husband is concerned, he alleges that the appellant/wife had deserted him since November 2021.

7. As far as adultery is concerned, counsel for the appellant/wife says that there is a contradiction in the stand taken by the respondent/husband and therefore, even this ground is not available for grant of divorce.

8. Besides this, it is submitted that since the person with whom the appellant/wife, allegedly, had an adulterous relationship was not arrayed as a party, the plaint was, any which way, liable to be rejected.

9. Notably, qua desertion, the learned Family Court Judge has held that the respondent/husband would need to prove the factum of alleged desertion from the date the respondent/husband claims the appellant/wife, purportedly, deserted him.

9.1 Although, prima facie, the learned counsel for the appellant/wife is right in contending that even if November 2021 is taken as the date of desertion, the ground will still not be available to the respondent/husband as the divorce petition was filed only in May 2023, it cannot lead to rejection of the divorce petition as the ground concerning cruelty, at this stage, seems viable.

10. As regards the non-joinder of the alleged adulterer (third party), the learned Family Court Judge has concluded that the divorce petition cannot be rejected only for the reason that the person with whom the appellant/wife was, allegedly, having an adulterous relationship was not impleaded as a party as the divorce petition.

10.1 In arriving at his conclusion that the application preferred under Order VII Rule 11 of the CPC was not sustainable, the learned Family Court Judge reasoned that the divorce petition could not be rejected merely because a part of the cause of action was not viable in law if the Court otherwise had jurisdiction to entertain the action.

11. In our view, even though the conclusion reached by the Family Court Judge on this score is correct, i.e., that the divorce petition cannot be rejected in part, arraying a third party to a divorce petition is neither proper nor necessary. A necessary party is one in whose absence no effective decree can be passed, whereas, a proper party enables complete and final adjudication of issues involved in a given lis.

11.1 The alleged adulterer is, to our minds, not a necessary party as a decree can be passed in his/her absence. Likewise, the adulterer is not a proper party since the issue concerning adultery can be adjudicated without making the adulterer a party to the cause. Proof of adultery need not be conflated with who should be arrayed as