Joinder Of Wife's Paramour As 'Defendant' Not Mandatory In All Cases Of Divorce On Ground Of Adultery: Orissa High Court

The Orissa High Court has ruled that joinder of paramour of the wife as 'defendant' is not mandatory in all cases of divorce on the ground of adultery.

While interpreting Rule 5 of the Hindu Marriage and Divorce (Orissa High Court) Rules, 1956 ('the Rules'), the Division Bench of Justice Arindam Sinha and Justice Mruganka Sekhar Sahoo held:

“Though the rule mandates making of the paramour as a necessary party but exceptions have been provided where such person may not be made a party. Therefore, the mandate of the paramour 'shall' be made a party is to be interpreted as to be made party where possible.”

The Court was hearing a matrimonial appeal against the judgment of a Family Court denying the appellant-husband divorce on the ground of adultery. While denying relief to the appellant, the Family Court had pointed out that the appellant-husband failed to ensure joinder of the paramour of his respondent-wife as a 'defendant' in the divorce petition.

It was contended on behalf of the appellant that the Court below erred in failing to appreciate that his client had not taken the ground of adultery but pleaded the fact to establish cruelty.

However, the counsel for the respondent-wife argued that his client was denied permission to file her written submission for which she did not get chance to counter the contentions of the appellant.

Court's Observations

The Court took note of Rule 5 of the Rules which mandates that in every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has committed adultery with any person, the petitioner shall make such person a co-respondent.

Notwithstanding the above provision, the Court observed, there are certain exceptions to the above rule which provide that the petitioner may apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the four grounds provided in the Rule.

Thus, the Court was of the considered view that though the rule mandates making of the paramour a necessary party but exceptions have been provided whereby such person may not be made a party. Therefore, the mandate of the paramour 'shall' be made a party is to be interpreted as to be made a party “wherever it is possible”.

When the Court queried about the details of the paramour to the appellant, it was informed that he does business in Noida, Uttar Pradesh but the appellant was unable to provide any further information relating the said person.

The Bench opined that the Family Court ought not stall its proceedings or deny relief to the appellant merely because of non-joinder of the paramour in the divorce case, especially when details of the paramour is not known to the appellant.

Accordingly, the case was remitted back to the Family Court directing the respondent-wife to file written statement and the High Court expressed hope that the Court below will expeditiously decide the case as per procedure of law.

Counsel for the Appellant: Mr. Subash Chandra Acharya, Advocate

Counsel for the Respondent: Mr. A.K. Swain, Advocate

Citation: 2024 LiveLaw (Ori) 2

Case Title: HB v. MJ

Case No: MATA No. 36 of 2023

Date of Judgment: January 03, 2023

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