K.N. Sunil Kumar vs Preethi Prasad and Others

Cyriac Joseph, C.J.—The Appellant is the Petitioner in W.P. No. 2440/04. The 1st Respondent is his wife and she was impleaded as 1st Respondent in the writ petition. Respondents 2 to 4 herein were Respondents 2 to 4 respectively in the writ petition. Though notice has been served on Respondents 2 and 3, they have not entered appearance through a Counsel. Though Respondent-1 had appeared through a Counsel, Sri Vasudevan, the said Counsel has filed a memo withdrawing from the case. Respondent-4 is represented by Counsel, Sri Chikkavenkataiah.

We have heard the learned Counsel for the Appellant and the learned Counsel for the 4th Respondent.

The Appellant had filed a petition for divorce in the Family Court, Bangalore, as M.C. No. 523/99. Divorce was sought on the ground of cruelty and adultery. Respondents 2 to 4 are the alleged adulterers and they were impleaded as Respondents in M.C. No. 523/99. By order dated 8-10-2002, the Family Court held that the petition was not maintainable against Respondents 2 to 4. According to the Family Court, the presence of Respondents 2 to 4 is not necessary in the proceedings since the Petitioner has not sought any relief against them. The Family Court further held that the adulterer is not a necessary party in proceedings under the Hindu Marriage Act. Accordingly it was held that Respondents 2 to 4 are not proper or necessary parties to the proceedings and the petition was dismissed as against them. Aggrieved by the order dated 8-10-2002 passed by the Family Court dismissing the petition as against Respondents 2 to 4, the Petitioner-Appellant filed W.P. No. 2440/04 praying to quash the said order dated 8-10-2002 of the Family Court. The learned Single Judge by order dated 28-1-2004 dismissed the writ petition upholding the order of the Family Court. Hence this writ appeal has been filed.

In Arun Kumar Agarwal v. Radha Arun and Anr. 2003 AIR-Kant.H.C.R 2576, a Division Bench of this Court in identical circumstances held that the alleged adulterer will be a proper party to the proceedings u/s 13(1)(i) of the Hindu Marriage Act. The Division Bench did not agree with the view taken by the Family Court that the alleged adulterer is not a proper or necessary party as no relief was sought against him. It was clearly held by the Court that the alleged adulterer is a proper party.

In view of the above mentioned decision of Division Bench of this Court, the learned Single Judge was not right or justified in dismissing the writ petition. Hence the impugned order of the learned Single Judge is set aside. The writ petition stands allowed. The order dated 8-10-2002 passed by the Family Court, Bangalore, in M.C.523/99 is set aside.

The writ appeal is allowed in the above terms.