ROSILY Vs. JAISON

JUDGEMENT

(1.) A wife facing proceedings for dissolution of marriage on a petition alleging grounds falling under Clauses (i) and (x) of Section 10(1) of the Divorce Act, 1869, has invoked Article 227 of the Constitution of India, challenging the Family Court's order granting leave to her husband to prosecute that petition without impleading the alleged adulterers as co-respondents. Hereinafter, we refer to the parties as 'wife' and 'husband' respectively.

(2.) Learned counsel for the wife argued that the court below erred in law and on facts in stating that the pleadings contain the allegation that the wife was leading the life of a prostitute, and that the husband having mentioned the names of the adulterers of the wife, ought to have impleaded them as co- respondents and leave could not have been granted to excuse the husband from doing so, in terms of Section 11 of the Divorce Act. Per contra, the husband's learned counsel argued that while the original petition before the Family Court contains the names of few persons who are charged as adulterers, the affidavit filed in support of the application seeking exemption from their impleadment as co-respondents contains the clear statement that the husband does not know the complete address of those persons and, therefore, the court below was justified in passing the order impugned. On facts, it was attempted to be pointed out that the names mentioned in the original petition seeking dissolution of marriage were included on the basis of entries found in a diary maintained by the wife as discovered by the husband and his mother. It is argued that the scope of Section 11(b) of the Divorce Act has to be understood as one meaning that the identity of the person for the purpose of impleadment should be available, to enable impleadment; to insist on such impleadment.

(3.) A petition for dissolution of marriage on one or more grounds enumerated in Section 10, to be presented to the District Court falls within the jurisdiction of the Family Court in terms of Section 7 of the Family Courts Act, 1984, for short, the "FC Act". Section 10 of the FC Act provides, among other things, that subject to the other provisions of that Act and the Rules framed thereunder, the provisions of Code of Civil Procedure and of any other law for the time being in force shall apply to the suits and proceedings before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such court. Rule 10 of the Family Courts (Kerala) Rules, 1989, made in exercise of the powers conferred by Section 23 of the FC Act, provides, among other things, that summons together with a copy of the petition or application and annexures, if any, shall be served in the manner prescribed in the Code of Civil Procedure, save in proceedings under Chapter IX of the Code of Criminal Procedure. Section 45 of the Divorce Act provides that, subject to the provisions contained in that Act, all proceedings under that Act shall be regulated by the Code of Civil Procedure. We are not shown that this High Court has framed rules under the Divorce Act though such rule-making process is provided in Section 62 of that Act. But, that makes no difference and it is worth- mentioning here that as per the proviso to Section 62, even if such rules are made, they shall be consistent with the provisions of the Divorce Act and Code of Civil Procedure. The afore-noted provisions in the FC Act and the Divorce Act clearly show that all proceedings before the Family Court under the Divorce Act shall stand regulated by the bunch of enabling provisions referable to the Code of Civil Procedure, the Divorce Act and the FC Act. Section 50 of the Divorce Act provides that every petition under that Act shall be served on the party to be affected thereby.