SARLA SHARMA Vs. SHANKUNTALA

JUDGEMENT

(1.) THIS judgment will dispose of two Civil Revision Applications Nos. 132-D and 133-D of 1965 from two separate orders of the Additional District Judge of Delhi, made on March 5. 1965, in a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (Act 25 of 1955), by Shakuntla respondent 1 against her husband D. K. Syal respondent 2 in both the revision applications. The revision applications are by Sarla Sharma, who is named in the divorce petition as a co-respondent, with whom the husband of respondent 1 is alleged to have committed adultery, which is ground for the divorce sought by respondent 1 from respondent 2. Respondent 1 has in the divorce petition made the applicant Sarla Sharma a respondent, or she may, for the sake of clarity, be described as co-respondent, along with her husband.

(2.) AN application was moved in the divorce petition on behalf of respondent 1 under Rule 4 of Order 14 of the Code of Civil Procedure for the examination of the applicant before the settlement of the issue on the ground that without such examination proper issue could not be settled. It appears that on that the applicant moved an application under Order I, Rule 10 of the Code of Civil Procedure that she not being a party to the divorce petition according to law, her name should be removed from the array of respondents in the divorce petition. The order of the learned trial Judge questioned in Civil Revision Application No. 132-D of 1965 is that rejecting the application of the applicant under Order I, Rule 10, Civil Procedure Code, for striking off her name from the array of respondents in the divorce petition. The attention of the learned Judge was drawn to Rules 10, 11 and 12 of the Rules framed under Section 21 of Act 25 of 1955 as published in the Rules and orders of this Court, Volume II, Chapter I-E, page 2, and the learned Judge was of the opinion that according to Rule 10, where a divorce petition, is by the husband, the adulterer is required to be made a co-respondent or a party respondent to such petition, but Rules 11 and 12 merely provide for the intervention by a woman correspondent when the divorce petition is by the wife against the husband with an allegation of adultery with such a female co-respondent. After noting those rules the learned Judge goes on to say that the counsel for the present applicant failed to cite a single precedent where a female co-respondent was impleaded as a party respondent to a divorce petition under the provisions of Act 25 of 1955, her name was struck off the array of respondents. He then pointed out that if in spite of specific allegation by respondent 1 that respondent 2 has committed adultery with the applicant, the last named does not wish to take interest in the outcome of the divorce petition, she can ignore the same. He was of the opinion that respondent 1 is dominus lite and there is no logic under which the present applicant can be said to have nothing to do with the divorce petition. This is the approach in which the learned Judge dismissed the applicant's application under Order I, Rule 10 of the Code of Civil Procedure for striking off her name from the array of respondent in the divorce petition. On the same day the learned Judge proceeded to pass the second order, which is the subject-matter of Civil Revision Application No. 133-D of 1965, and in that order he said that if the counsel for the applicant answers the questions put to him the applicant need not be compelled to attend court in person for that purpose. It is not clear from the order whether it was an order made on the application of respondent 1 under Rule 4 of Order 14 or under Rule 2 of Order 10 of the Code of Civil Procedure, but that makes no difference because in either case order can only be made in this manner against a party to a proceeding in Court. So that the correctness or otherwise of this order is really dependent upon the correctness or otherwise of the other order of the learned Judge refusing to strike off the name of the applicant from the array of respondents in the divorce petition under Rule 10 of Order 1. If she remains a party, the order culling upon her counsel to answer questions before settlement of issues is an order in regard to which there is no justification for interference, and, if on the contrary she is not a party to the divorce petition, no such order can be made against her either calling upon her counsel or calling upon her in person to answer questions before settlement of issues, whether such an order is made under Rule 4 of Order 14 or Rule 2 of Order 10 of the Code of Civil Procedure. So that really the substance of the matter is settled by a decision of the order against which Civil Revision Application No 132-D of 1965 is directed.

(3.) THERE is no provision in Act 25 of 1955 who in particular is a necessary or, for that matter, even a proper party to a petition for divorce under Section 13 of the Act The relevant rules in the Hides framed by this Court under the provisions of that Act are those to which reference was made before the learned trial Judge, and those rules read. " 10 Upon a petition presented by a husband for divorce on the ground of adultery, the petitioner shall make the alleged adulterer a co-respondent. The petitioner may, however, be excused from so doing on any of the following grounds with the permission of the Court : (a) That the respondent is leading the life of a prostitute and that the petitioner knows of no particular person with whom the adultery has been committed: (b) That the name of the alleged adulterer is unknown to the petitioner although be has made due efforts to discover the same; (c) That the alleged adulterer is dead. 11. Where a husband is charged with adultery with a named person, a true copy of the pleadings, containing such charges shall unless the Court for good cause shown otherwise directs, be served upon the person with whom adultery is alleged to have been committed, accompanied by a notice that such person is entitled, within the lime therein specified, to apply for leave to intervene in the cause. 12. (a) A respondent or a co-respondent or a woman to whom leave to intervene has been granted under these rules, may file in the Court an answer to the petition. " The learned counsel for the applicant has also referred to Rule 13, but to the case of a female co-respondent Rules 11 and 12 (a) apply directly. So in my opinion, Rule 13 does not come in for consideration.