JASWANTRAI JETHALAL Vs. VIMAL

JUDGEMENT

(1.) The petitioner filed a petition for divorce under sec. 13 of the Hindu Marriage Act 1955 against his wife Vimal on the ground that she was living with one Madhukar opponent No. 2. He also claimed Rs. 10 0 as damages from Madhukar. The learned Civil Judge held that the claim for damages was not tenable in proceedings under the Hindu Marriage Act. It is against this order that the present revision application has been filed.

(2.) In revision it is contended that under Rule 5 of the Bombay High Court Rules it is obligatory for a petitioner who files a petition on the ground of adultery to name and cite the co-respondent. It is therefore urged that under order 2 Rule 2 and Order 2 Rule 3 C. P. Code the claim for damages against an adulterer can be joined in the petition for divorce in view of the provisions of sec. 21 of the Hindu Marriage Act 1955 It is also contended that under the Hindu Marriage Act the forms attached to the Indian Divorce Act have to be followed as far as possible and that the form in Sch. II of the Indian Divorce Act makes a provision for a claim of damages. It is also contended that under art. 21 of Schedule II of the Bombay Court Fees Act as amended there is a provision for court-fees in a claim for damages against an adulterer in proceedings under the Hindu Marriage Act. It is therefore contended that under the Court fees Act a claim for damages can be joined in a petition for divorce. It is lastly contended that unless there is a provision barring such a joinder the joinder of a claim for damages against an adulterer in proceedings under the Hindu Marriage Act should be allowed which lies under the law of Torts.

(3.) In my opinion there is no merit in any of these contentions for the following reasons: