MAT.APP. (F.C.) 164/2023

Page 1 of 7

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 13th October, 2023

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Pronounced on: 31st October, 2023

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MAT.APP. (F.C.) 164/2023 & CM APPL. 29884/2023, 29886/2023,

33507/2023 & 36933/2023

RICHA SUREKA

..... Appellant

Through:

Ms.Vandana Kejriwal, Advocate.

versus

AKHIL KUMAR SUREKHA

..... Respondent

Through:

Mr.N.P.Singh, Mr.Amrit Singh and

Mr.Vinay Kaushik, Advocates.

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J.

1.

An appeal under Section 19 of the Family Courts Act, 1984 has

been filed against the Order dated 02.02.2023 dismissing the application

under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter

referred to as “CPC”) of the appellant/ wife.

2.

The respondent/ husband had filed a petition for Divorce on the

ground of cruelty and desertion under Section 13 (1) (ia) and (ib) of Hindu

Marriage Act, 1955 (hereinafter referred to as “Act”). The appellant/ wife

moved an application under Order VII Rule 11 CPC claiming that the

divorce was sought essentially on the ground of adultery which cannot be

adjudicated in the absence of alleged adulterer being made a party to the

DigitallySigned By:SAHIL

SHARMA

Signing Date:03.11.2023

11:43:28

Signature Not Verified

MAT.APP. (F.C.) 164/2023

Page 2 of 7

petition. Rejection of the petition was sought on the ground of non-

impleadment of the alleged adulterer.

3.

The learned Judge, Family Court observed that the present petition

was on the ground of Cruelty and Desertion and not on the ground of

adultery, therefore, the contention raised by the appellant was primarily not

maintainable and was without merit. Furthermore, whether the allegations

of adulterous relationship would be viewed as a ground of cruelty is an

aspect which is dependent on factual settings of a given case and cannot be

determined forthwith. Therefore, the application was rejected.

4.

Aggrieved, the present appeal has been preferred.

5.

The learned Counsel on behalf of the appellant/ wife (who is the

respondent in the Divorce Petition) has asserted that the respondent herein

had filed a Divorce petition bearing No.00514/2016 in the Family Court at

Faridabad, Haryana, on the ground of Adultery under Section 13 (1)(i) and

(ia) of the Act. The Additional Principal Judge, Family Court, Faridabad

relied upon the judgments in R.K. Raja vs. U.S. Rayudu & Anr. (2016) 14

SCC 275, Ram Kumar @ Ramender Kumar vs. Smt. Raksha @ Gulabo AIR

2003 Punjab & Haryana 334, Dhruv Galgotia vs. S.E Investment Ltd. CR

No.117 of 2017 (Punjab & Haryana) and observed that non-impleadment of

an adulterer in a petition seeking divorce on the ground of adultery was not

maintainable. Consequently, the divorce petition was rejected under Order

VII Rule 11 CPC. An appeal was preferred before the Punjab & Haryana

High Court, which was withdrawn by the respondent/ husband.

6.

However, the present Divorce petition has been filed afresh before the

Principal Judge, Family Court, Delhi, wherein the paragraphs from 1 to 20

are identical to those of the previous divorce petition, while the other

DigitallySigned By:SAHIL

SHARMA

Signing Date:03.11.2023

11:43:28

Signature Not Verified

MAT.APP. (F.C.) 164/2023

Page 3 of 7

paragraphs relate to the subsequent events. It is argued that once the first

Divorce petition had already been rejected for non-impleadment of the

adulterer, the present divorce petition which also is essentially on the same

grounds, is not maintainable since the adulterer has again not been

impleaded. Reliance has been placed on the judgment of Khawar Butt vs.

relationship as a party defendant, while not proceeding against the other.”

Reliance has also been placed on Philips James Coates vs. Agnes Fernandes

AIR 1994 M