The Delhi High Court recently held that an alleged adulterer is neither a necessary nor a proper party to a divorce petition and it would not be necessary to hear the adulterer before passing an order in the divorce petition between the husband and wife.
A Division Bench of Justices Rajiv Shakdher and Amit Bansal said that a divorce petition is a lis centered around the couple who entered into matrimony and a third party who does not claim the status of a spouse has no locus to intervene or seek impleadment in such a cause.
“The alleged adulterer is, to our minds, not a necessary party as a decree can be passed in his/her absence. Likewise, the adulterer is not a proper party since the issue concerning adultery can be adjudicated without making the adulterer a party to the cause. Proof of adultery need not be conflated with who should be arrayed as a party to a divorce action,” the Court said.
The Bench further said that the alleged adulterer can either be summoned as a witness or other evidence can be placed before the family court to prove adultery.
The Court made the observations while dealing with an appeal filed by a woman challenging the order passed by the family court denying her plea to reject the divorce petition filed by her husband.
It was argued that the divorce petition pivoted on three grounds i.e., cruelty, adultery, and desertion.
The wife told the Court that the allegations of desertion are not made out against her and regarding the accusations of adultery, the alleged adulterer was not made a party to the case.
After considering the arguments, the Bench said that contradictory pleadings concerning the accusation of adultery if taken on a standalone basis, cannot lead to the divorce petition being dismissed summarily.
The Court also noted that the wife does not dispute the fact that there are assertions in the divorce petition instituted by the respondent/husband concerning cruelty.
“Thus, given the fact that allegations concerning cruelty are embedded in the divorce action, the petition cannot be rejected in a piecemeal manner upon an application being moved under Order VII Rule 11 of CPC.”
The Court, therefore, rejected the appeal.
Advocates Prateek Goswami, Dhiraj Goswami and Shashank Goswami represented the appellant wife.
None appeared for the petitioner.
[Read Order]