ANAND LAKSHMI Vs. NARASIMHAM

JUDGEMENT

(1.) The third party who wants to come on record in O. P. No. 135 of 1968 on the file of the District Court. Eluru, is the petitioner. Th; O. P., is filed under Section 13 of the HINDU MARRIAGE ACT, 1955 for divorce by a husband against his wife, respondents 1 and 2 herein. Originally, a decree for divorce was passed ex parte on 11-3-1969, After more than one year, that is, the time to be elapsed from the date of decree for divorce before either party to the dissolved marriage can validly marry again, on 11-4-1970, the petitioner was married by the 1st respondent. Subsequently, on an application filed by the 2nd. respondent, to which the present petitioner was not made a party, the ex patte decree of divorce was set aside, ultimately, by this court. It is after the ex parte divorce decree was set aside and O.P., was restored to file for disposal afresh, the petitioner has come forward with the application in question under Order 1, Rule 10 (2) of the Code of Civil Procedure to come on record, alleging that she married the 1st respondent on 11- 4-1970 in Madras and ever since she has been living with him as his legally wedded wife. The 1st respondent married her stating that he had obtained divorce from the 2nd respondent in O. P. No. 135/68. She learnt now that at the instance of the 2nd respondent, O. P. No. 135/68 is revived and is pending trial. She is vitally interested in the matter as the legally wedded wife of the 1st respondent. It is, therefore, necessary in the -interest of justice that she may be added aa 2nd respondent in the O. P., a otherwise, she will suffer serious and irreparable loss. The lower court dismissed the application by passing a very short order as hereunder :

(2.) It is provided under Section 21 of the HINDU MARRIAGE ACT, 1955, that subject to the other provisions contained in the Act and to such rules as the High Court may make in that behalf, all proceedings under the Act should be regulated, as far as may be, by the Code of Civil Procedure, 1908. Therefore, Order 1, Rule 10 (2) which provide: for addition of parties, is applicable to the proceedings under the HINDU MARRIAGE ACT, 1955. In support of his submission that the petitioner is not a necessary party to the divorce proceedings between respondents 1 & 2, Shri V. Venkatramahaiah, learned counsel for (he 2nd respondent, has placed reliance on the decision in Ramsay v. Boyle]1, which had arisen under the Indian Divorce Act. It was held therein that in a wife's suit for divorce against the husband on the ground of adultery, the court has no power under the Indian Divorce Act to allow the alleged adulteress to intervene. The relevant section in the Indian Divorce Act is Section 45, which is in the following terms: "Subject to the f revisions herein contained all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure". The Calcutta High Court, in coming to that conclusion, laid stress on the words in Section 45 of the Indian Divorce Act: "all proceedings under this Act between party and party". In the present Section 13 of the HINDU MARRIAGE ACT, 1955 no such language was used by the legislature. It is provided under Section 13 (I) of the HINDU MARRIAGE ACT, 1955 that any marriage on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on any of the grounds mentioned therein. There are no words like "bitween party and party" as in Sec. 45 of the Indian Divorce Act. In the decision in Dorothy E. Stuart v. Vernon R. Stuart]2, the Allahabad High Court, referring to the Calcutta decision mentioned above, expressed a doubt that the matter is not free from difficulty. The learned Judge of the Allahabad High Court said that in his opinion it is clearly in the interests of justice that a party who is named in a divorce plaint as being one of the persons with whom the respondent is alleged to have committed adultery should be allowed to intervene and defend his or her character against the aspsrsions which have been levelled against him or her. It is provided under Order I, Rule 10 (2) that the court may at any stage of the proceedings either upon or without the application of either party, add a party whose presence before the court may be necessary, in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the suit. The petitioner after expiry or one year period prescribed under law for a valid marriage, after dissolution of the 1st marriage, married the 1st respondent Of the date of her marriage, there was no legal impediment for her validiy marrying the 1st respondent. It appears to be a very unfortunate case that after the petitioner had married the 1st respondent validiy, at the instance of the 2nd respondent, without the knowledge of the petitioner, the ex parte divorce decree between respondents 1 and 2 were set aside and the matter was reopened, and it is now to be decided afresh whether the 1st respondent is entitled to a divorce decree .againt the 2nd respondent. If, ultimately, a divorce decree is to Be passed between the two respondents, there may not be any complications with regard to the status of the petitioner vis-a-vis the 1st respondent. But, if the petition for divoice is to be dismissed and no decree for divorce is to be granted, then it will be a matter of grave concern to the petitioner, because, in such a case, what would happen to her marriage with the 1st respondent, which was a valid one on the date it took place is a grave matter to her, as under law, there cannot be two legally wedded wives for the 1st respondent. Therefore, the petitioner is vitally interested in the outcome of the petition for dissolution of the marriage between respondents 1 and 2, now pending trial. In the interests of justice and also to enable the court to effectually and completely adjudicate upon and settle all questions involved in the matter, the petitioner should be brought on record.

(3.) Accordingly, the Civil Revision Petition is allowed with costs and the lower court is directed to add the petitioner as 2nd respondent in O.P. No. 135 of 1968.