Divorce Decree Can Be Passed In Absence Of Alleged Third Party Adulterer; Divorce Lis Only Centered Around Couple Who Entered In Matrimony: Delhi HC
The Delhi High Court held that a decree of divorce can be passed in the absence of the third party alleged adulterer observing that a divorce lis is only centred around the couple who have entered into matrimony.
The Court clarified that the alleged adulterer (third party) can either be summoned as a witness or other evidence can be placed before the Family Court to prove adultery, but cannot be impleaded in such cases.
A Division Bench of Justice Rajiv Shakdher and Justice Amit Bansal observed, “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 a party to a divorce action…A divorce action is a lis centered around the couple who have entered into matrimony. A third party [who does not claim the status of a spouse] has no locus to intervene or seek impleadment in such a cause.”
Advocate Prateek Goswami appeared for the appellant.
The wife had challenged the Family Court’s dismissal of her application which sought to reject the divorce petition filed by her husband on grounds of cruelty, adultery, and desertion.
The wife argued that the pre-requisites of Section 13(1)(ib) of the Hindu Marriage Act, 1955 (HMA) concerning desertion were not met. She submitted that the petition was filed in 2023, while she had cohabited with the respondent till 2022, therefore, the ground was not available to the husband to seek a divorce.
As regards the non-joinder of the alleged adulterer (third party), the Family Court had concluded that the divorce petition cannot be rejected only for the reason that the person with whom the wife was allegedly having an adulterous relationship was not impleaded as a party in the divorce petition.
The High Court upheld the decision of the Family Court and held, “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.”
The Bench explained that a necessary party to a divorce proceeding would be that in whose absence no effective decree could be passed, whereas, a “proper party enables complete and final adjudication of issues involved in a given lis.”
The Court relied on a Co-ordinate Bench’s decision in Manjul Joshi v. Bhavna Khurana (2024:DHC:4170-DB) wherein it was held that a third party (who does not claim the status of a spouse) had no locus to intervene or seek impleadment in such a cause.
Consequently, the Court held, “Contradictory pleadings concerning the accusation of adultery vis-à-vis the appellant/wife, if taken on a standalone basis, cannot lead to the divorce petition being dismissed summarily.”
Accordingly, the High Court dismissed the appeal.
Cause Title: X v. Y (Neutral Citations: 2024:DHC:5541-DB)
Appearance:
Appellant: Advocates Prateek Goswami, Dhiraj Goswami and Shashank Goswami
