While considering an appeal of a man in a divorce case, the Karnataka High Court has held that when the issue was about an adulterous relationship alleged by one party against another, the Trial Court could not hold that the petition was not maintainable on account of non-arraignment of the adulterer as a party to the proceedings. The Court held that adulterer is only a proper party to such a petition, not a necessary party.

The appellant husband had approached the High Court, challenging the judgment and decree passed by the Family Court.

The Bench comprising Justice M.I. Arun and Justice Usharani held, “After adverting to the principles enshrined above, we hold in this case that when issue is with regard to adulterous relationship alleged by one party against another, the Trial Court erred in holding that the petition is not maintainable on account of non-arraignment of adulterer as a party to the proceedings.”

Advocate C.S. Shettar represented the Appellant.

Factual Background

The marriage of the appellant and the respondent was carried out in 2012 as per customs and traditions prevailing under Hindu law. A few months after the marriage, the respondent-wife started expressing her unwillingness to continue residing in the joint family. She also frequently criticized the appellant for his inability to secure a stable and definite source of income and also stated that she had married him only due to the pressure exerted by her parents. The husband alleged that his wife was caught red-handed with another man who snatched her mangalsutra and escaped on a motorcycle. Thereafter, when the respondent was handed over to the Police, she disclosed that she was having an illicit relationship and had also conceived out of the said relationship. It was in such circumstances that the appellant filed a petition seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The Family Court held that since adulterer was not arrayed as a party to the proceedings, the petition was not maintainable.

Reasoning

The Bench referred to the High Court's judgment in Arunkumar Agarwal Vs. Radha Arun and another (2004), wherein it has been held that an adulterer will be a proper party to the proceedings under Section 13(1)(i) of the Hindu Marriage Act and will not be a necessary party.

Dealing with the facts of the case, the Bench held that the Trial Court erred in holding that the petition was not maintainable on account of non-arraignment of the adulterer as a party to the proceedings.

The Bench further found that the appellant had not witnessed the incident and, based on the information given by his aunt and her son, he became aware of the same. However, on the contrary, during his cross-examination, the appellant deposed that he found the respondent and the other man in the custody of his aunt.

“In fact, the complaint was lodged by PW1, that too after expiry of six days. Pertinently, the above mentioned aunt of the appellant and her son (PW2 and PW3) who were said to be the eye witnesses to the alleged incident, are related to the appellant. If at all respondent was caught red-handedly, nonfiling of complaint on the very same day makes the occurrence of the alleged incident improbable and the same has been rightly observed by the Family Court”, it stated.

The respondent had admitted in her evidence that she was at a rehabilitation centre for three days. Further, she had also stated that her mother took her to their village from the rehabilitation centre. “From the above facts and admission regarding remaining in rehabilitation centre, we opine that there is dispute between appellant and respondent, which is at best a natural wear and tear in their marital life but it does not prove that respondent is in an adulterous relationship”, it added.

Dealing with the appellant’s contention that the respondent conceived from the illicit relationship, the Bench noted that the respondent wife herself answered that the child would be born to the appellant and she was not ready to undergo DNA test. The Bench was of the view that it was for the appellant to prove non-access to dispel the presumption arising under Section 112 of the Indian Evidence Act, 1872.

Thus holding that nothing much was elicited in support of the case of the appellant, the Bench dismissed the appeal.

Cause Title: A v. B (Case No.: MFA No. 102914 of 2022)

Appearance

Appellant: Advocates C.S. Shettar, Kavya C

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Karnataka High CourtJustice M.I. ArunJustice Usharani

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.