'Adulterer' Not Necessary Party To Divorce Petition, Decree Can Be Passed In His Or Her Absence: Delhi High Court

The Delhi High Court has recently ruled that an alleged adulterer, being a third party and suspected of having an affair with a spouse, is not a necessary party to a divorce petition.

A division bench comprising Justice Rajiv Shakdher and Justice Amit Bansal said that a decree can be passed in the absence of such an individual.

“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 a party to a divorce action,” the court said.

It added that a divorce action is a lis centred around the couple who have entered into matrimony and thus, a third party, who does not claim the status of a spouse, has no locus to intervene or seek the impleadment in such a cause.

The bench made the observations while dismissing the appeal filed by a wife challenging a family court order rejecting her application moved under Order VII Rule 11 of the Code of Civil Procedure, 1908.

The divorce petition was instituted by the husband against the wife on the grounds of cruelty, adultery and desertion.

It was her case that since the person with whom she allegedly had an adulterous relationship was not arrayed as a party, the plaint was liable to be rejected. The Family Court Judge had held that the divorce petition cannot be rejected only for the reason that the person with whom she was allegedly having an adulterous relationship was not impleaded as a party to the divorce petition.

Dismissing the appeal, the court observed: “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.”

The bench said that the alleged adulterer, being a third party, can either be summoned as a witness or other evidence can be placed before the Family Court to prove adultery.

“Therefore, on this count, we are not in agreement with the counsel for the appellant/wife,” it said.

The bench concluded that given the fact that allegations concerning cruelty were embedded in the divorce action, the husband's petition could not be rejected in a piecemeal manner upon an application being moved under Order VII Rule 11 of CPC.

Title: X v. Y

Citation: 2024 LiveLaw (Del) 860

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