K C P MATHEW Vs. MARY

JUDGEMENT

(1.) The petitioner in this writ petition filed under Art.227 of the Constitution of India is the husband of the 1st respondent herein. He filed O.P.340/2003 (Ext.P1) on the file of the Family Court, Manjeri under Sec.7(1)(a) of the Family Courts Act, 1984 read with Sec.10 of the Indian Divorce Act, 1869 for a decree of divorce against the first respondent on the ground that the 1st respondent wife had committed adultery. During the pendency of the said petition, the petitioner herein filed I.A.397/2005 (Ext.P2) under O.I. R.10 C.P.C. for impleading two persons by name Moncy and Jaison as additional respondents 3 and 4 alleging that they are co-adulterors. The petitioner also filed I.A.No.398/2005 (Ext.P3) under O.I R.10(3) C.P.C. for amendment of the cause title of Ext.P1 O.P. to show the names of the aforesaid two persons as additional respondents 3 and 4. Both the above applications were opposed by the 1st respondent wife. The Family Court as per common order dt.11.4.0005 (Ext.P4) dismissed the said applications. It is the said common order which is assailed in this writ petition filed by the petitioner-husband.

(2.) I heard the learned counsel for the petitioner as well as the learned counsel appearing for the 1st respondent wife.

(3.) Assailing the impugned order the learned counsel for the petitioner made the following submissions before me:- The two persons who were sought to be impleaded as additional respondents 3 and 4 to the petition for divorce are a worker and relative by name Moncy and a neighbour by name Jaison. They are persons with whom the 1st respondent wife had been having adulterous intercourse and this fact has been specifically alleged in paragraph 12 of the Ext.P1 petition for divorce. But they were not arrayed as respondents to the petition on account of an inadvertent omission on the part of the petitioner. That was why the petitioner filed Exts.P2 and P3 applications. Sec.11 of the Indian Divorce Act, 1869 enjoins that in every petition for dissolution of marriage on the ground of adultery the petitioner shall make the alleged adulterer/adulteress a co-respondent, unless the petitioner is excused by the court from doing so on any of the three grounds enumerated thereunder. Sec.11 thus makes it obligatory on the husband to make the alleged adulterer a co-respondent unless he is excused as aforesaid. The above provision is mandatory and that is why the petitioner filed Ext.P2 and P3 applications. In Joseph v. Mary (1999 (2) KLT 786) a Full Bench of this Court held that the non-impleadment of the adulterer as a co-respondent without dispensing with the above mandatory requirement was a sufficient ground to set aside a decree of divorce. In Thomas Kurien v. Meena (2000 (1) KLT 183) a Full Bench of this Court held that impleadment of the alleged adulterer is a mandatory requirement unless the applicant is excused from doing so and that it is obligatory on a court entertaining a petition under the Act to consider all the aspects of the case including the requirements under Secs.11 and 14 of the said Act. Sec.10 of the Family Courts Act makes the Code of Civil Procedure applicable to proceedings before the Family Court. A reading of the provisions contained in O.I. R.10(2) C.P.C. will indicate that the court is given the power to add any person who ought to have been joined or whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the case. When such persons are added, sub-rule 4 of O.I.R. 10 C.P.C. indicates that the plaint has to be thereupon amended. This was the reason why the petitioner filed Exts.P2 and P3 applications which have been rejected by the Family Court for reasons which are unsustainable.