KHARAITI LAL SHARMA Vs. PUSHPA RANI

JUDGEMENT

(1.) THIS is a husband's appeal against the order of the trial Court dismissing his divorce petition against the wife under Section 13 of the on the ground of adultery. The intruding male had been impleaded as a co-respondent in the case.

(2.) THE co-respondent Shri Madan Lal, Assistant Sub-Inspector in Delhi Police has died during the pendency of this appeal, filed in 1967. The counsel for the parties have not been able to give me the exact date of his death though it is conceded that it had taken place more than three months ago and that no steps have been taken within the time allowed by law for bringing his legal representatives on record. The trial Court had found that the respondents had been living in adultery as alleged by the husband but that the latter had condoned these acts of adultery and had thereby disentitled himself to any relief. The co-respondent Shri Madan lal A. S. I. had put in appearance in the Court below and had filed a written statement contesting the allegations of adultery made against him. He had in fact claimed special costs under Section 35-A of the Code of Civil Procedure pleading that the allegations were frivolous and vexatious and had been made to harass him. He had put in appearance through a counsel in this Court as well but the counsel had not been appearing for the last two hearings.

(3.) AS there was an attack on A. S. I. Madan Lal's character and the learned trial court had not found his conduct completely blameless. I was wondering whether his legal representatives could be interested in having the adverse findings against the deceased set aside and whether they were necessary parties. The corespondent if alive and known to the petitioner, has ordinarily to be impleaded as a necessary party in the husband's divorce petition on the ground of adultery in view of Rule 10 of the Hindu Marriage (Punjab) Rules, 1956, framed by the High court under Section 21 of the Hindu Marriage Act, 1955. The rule, however, makes an exception where the alleged adulterer is dead. Shri Madan Lal's death therefore, absolved the petitioner of the obligation of impleading the deceased or his legal representatives and no abatements of the appeal may appear to have taken place because of the appellant's failure to implead Shri Madan Lal's legal representatives within the time allowed by law. Shri Chawla, the learned counsel for the petitioner; has cited before me a Single Bench decision of this Court in smt. Sarla Sharma v. Smt. Shakuntala, AIR 1966 Punj 337 (Delhi Bench) in this connection. As that was a case relating to a wife's petition for divorce on the ground of the husband's adultery, there was no obligation cast on the petitioner by any statutory provision to implead the female co-respondent. The case cited does not, therefore, appear strictly applicable to the case now before us. In any case, exception (c) to Rule 10 may seem to give the Court a discretion to dispense with the impleading of the deceased adulterer or his legal representatives. I have, therefore, no hesitation in setting aside the abatement, even if any had taken place.