The Madras High Court recently ruled that in divorce cases involving allegations of adultery, the person with whom a spouse is accused of having an extramarital affair (the alleged adulterer) should also be made a party before the court..A Bench of Justices GR Swaminathan and R Poornima added that the only exception to this rule is when the alleged adulterer's details are unknown or if the alleged adulterer cannot be traced. In all other such cases, the failure to add the alleged adulterer as a party to the divorce case would render the divorce plea non-maintainable, the Court held."If the petitioner (person who seeks divorce on the ground of adultery by their spouse) is aware of the details of the alleged adulterer, he or she must be made a co-respondent. Failure to implead would be fatal and the petitioner will have to be non-suited summarily at the very threshold. If according to the petitioner, the name of the adulterer or adulteress is not known or if the alleged adulterer or adulteress is dead, the petitioner can be excused from the requirement of impleading the alleged adulterer. The petitioner must of course get leave from the court for being so excused," the Court said. .It is only just and fair that a person is heard before he is condemned. In our culture, to be branded an adulterer is not a badge of honour.Madras High Court.The Court added that it did not agree with the view that making an alleged adulterer a party to divorce proceedings between a couple may violate the privacy of such a third party. "Some Judges have taken the view that it will amount to invading the privacy of the third party. We do not think so," the Bench said. The Court reasoned that it is more important for such a person to be given an opportunity to deny or affirm the allegation that he was involved in an adulterous relationship, "Accepting the case of the petitioner suing for divorce on the ground of adultery would result in casting stigma and aspersion on the character of the person with whom the respondent is said to have had an adulterous relationship ... Opportunity ought to be given to the said individual to disprove the allegation made by the petitioner. Otherwise, he would stand condemned behind his back ... it is only just and fair that a person is heard before he is condemned. Certainly, in our culture, to be branded an adulterer is not a badge of honour," the January 28 ruling said. .The Court further noted that making it mandatory to add the alleged adulterer as a co-respondent to divorce proceedings could discourage reckless allegations. "If making the alleged adulterer as co-respondent is made mandatory, one would think twice before putting forth baseless allegations," the Court said. The Bench also noted that although rules framed by the Court under the Hindu Marriage Act, 1955 did not call for making an alleged third-party adulterer a part of divorce proceedings, the Divorce Act of 1869 laid down that such persons should also be made a respondent to divorce petitions..The Court passed the ruling in a case where a man sought a divorce from his wife on the ground that she was involved in an affair with another man. The wife denied the claim and filed a plea seeking to restore marital relations.A trial court rejected her plea and accepted the divorce plea filed by her husband. Aggrieved, she approached the High Court for relief.The High Court found that the man had only levelled vague allegations of adultery against his wife and that he should have ideally made the alleged adulterer a party to his divorce plea. Since he had failed to do this, the High Court held that his divorce plea could not be sustained. Therefore, the High Court set aside the trial court verdict that had granted him a divorce."It is not the case of the respondent herein that the alleged adulterer is not known to him ... If only the respondent herein had made due efforts, he could have definitely secured the address particulars. In these circumstances, the Court below ought to have held that the divorce petition was fundamentally defective and straightaway non-suited the husband-petitioner," the High Court opined..Advocate Aju Tagore represented the wife while Advocate S Bharathy Kannan represented the husband..[Read Judgment]
