Kulwant Kour vs Surjeev Singh and Anr.

This appeal is directed against an order of District Judge, Jammu, dismissing the appellant's application u/s 10 of the Hindu Marriage Act,

hereinafter the Act, which she had brought against her husband, the respondent, for a decree for judicial separation.

Initially, the appellant had brought an application under sections 10/13 of the Act with a composite prayer for a decree for divorce or in the

alternative for a decide for judicial separation. This petition was based upon the twin ground of cruelty and adultery. In terms of Rule 10 (a) of the

Rules made under the Act. She had also arrayed as a respondent one Saran Kour with whom, according to her the respondent was committing

adultery, An objection was taken you behalf of the respondent herein that as the petition had been presented within three years from the date of the

marriage and that too without seeking leave of the court in terms of Sec. 14 of the Act, the same was not maintainable. Faced with it. the appellant

withdrew her application with liberty to bring a fresh one u/s 10 alone. She accordingly brought the second application basing her claim on the very

same grounds and also impleaded Saran Kaur as a party to it. This application was resisted by the respondent by way of preliminary objections to

the effect that the appellant was not competent to claim a decree for judicial separation on the ground of adultery that the affidavit in support of the

application was not in accordance with law and that the verification of the application was not proper. This gave rise to the following three

preliminary issue :

Whether the application in the present form is maintainable ? O. P. P.

Whether the affidavit is not in accordance with the Rules ? If not, what is its effect ? O. P. R.

171 Smt Kulwant Kour Vs. Sareet Singh

Whether the application is not propsrly verified ? If so, what is its effect ? O. P. R.

The District Judge decided Issues Nos. 2 and 3 in favour of the appellant holding that the affidavit was in accordance with the rules and that the

application too had been properly verified So far as Issue No. 1 was concerned, he held that adultery not being one of the ground upon which a

decree for judicial separation could be claimed, the appellant's application on this ground was not maintainable Thereafter, the respondent moved

an application asking the court to delete the name of Saran Kaur, as according to it"" own order disposing of the preliminary issues, no decree for

judicial separation could be passed in favour of the appellant on the ground of adultery simpliciter. This plea found favour with the District Judge

who accordingly deleted her name vide his order dated 1941976. Two additional issues were then framed in the case which read as under :

Whether the marriage of the parties has not been consumed ?

Whether 1he respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will

be harmful or injurious for the petitioner to live with the respondent?

The parties went to the trial on these issues and led evidence on them. The District Judge, on consideration of the same, eventually came to the

conclusion that the marriage had been consummated and also that the respondent had not treated the appellant with cruelty and dismissed the

petition,

Mr Goni, appearing for the appellant, has taken three points before me one, that the view taken by the District Judge that the appellant could not

claim a decree for judicial separation on the ground of adultery was clearly erroneous, two, that ho had erred in deleting the name of Saran Kaur

from the array o"" respondent who in terms of Rule 10 was a necessary party and three' that he had failed to give a finding one way or the her, en

the charge of adultery. I now proceed to deal with these contentions find seriatim.

I have absolutely no difficulty in holding that the view ken by the District Judge on the first point is manifestly erroneous, Section 10 speaks of six

grounds upon which a spouse may obtain a decree judicial separation against his or her counter part, one of these: being that the other spouse has

after the solemnization of the marriage had sexual intercourse with any person other than his or her spouse. Clearly, therefore, adultery if enc of the

grounds upon which a decree for judicial separation may be claimed.)

This incidentally brings me to the third point of the learned counsel. The mistake which had initially crept in the earlier order of the District Judge,

dated 1131976 was repeated her, his later order impugned in this appeal. It has not been dispute d before me that the parties had led some

evidence on the plea of adultery The District Judge, however, declined to consider this evidence as according to him, this plea stood finally

clinched by virtue of the earlier order dated 113S97o. Obviously therefore, the applicant who could have got a decree for judicial separation on

the ground of adultery, in case there was enough material to sustain the plea, was deprived of the same, because the District Judge at both the

stages took an erroneous view of Section '0. This would have been sufficient to accept the appeal and remit the case back to the District Judge for

according a fresh finding on this issue, but as lengthy arguments on the admit and scope of Rule 10 have also been advanced before me, I can not

shirk my responsibility of dealing with these contentions of well. Whereas Mr Goai has contended that Rule 10 is mandatory in character and its

noncompliance would vitiate the final order, Mr. Avtar Singh has argued that it is only directory in nature and its noncompliance will not vitiate the

final order.

Rule 10 for the sake of convenience is reproduced as below :

Necessary parties. (a) In every petition for divorce or judicial separation on the ground that the respondent is levied in adultery or has

committed adultery with any person, tae petitioner shall make the alleged adulterer or adulteress a correspondent to the petition, unless he or she is

excused by the court from doing so on any of the following grounds :

(i) that the name of such person is unknown to the petitioner, although he has made due efforts for discovery;

(ii) 'that such/person is dead;

(iii) shut the respondent, if a woman, i leading the life of a prostitute and that the petitioner knows of no person with whom adultery has been

committed; or

(iv) any other reason that the court considers sufficient.

(b) In every petition under section 13 (2) (1) of the Act the petitioner shall make 'the other wife' mentioned in that section a correspondent.

(c) In every petition under section 11 of the Act on the ground that the condition in section 5 (1) is contravened, 'he petitioner shall make the

spouse alleged to be living at the time of the marriage a correspondent,

(d) If a petitioner does not make the alleged adulterer or adult cress a corespondent he shall at the time of presenting the petition file a separate

application supported by an affidavit giving the reasons.

9 The Rison dieter of this Rule is quite clear. Not only the character of the spouse against whom a charge of adultery is levelled is at stake, but the

character of his or her counterpart with whom adulterous relations are alleged to exist is also in peril. In order to give relief to a party on the ground

of adulterous intercourse, the court has necessarily to give a finding in regard to the character of the male as well as the female against whom a

charge of adulterous intercourse is made. Fair play demands that before assassinating his or her character, an opportunity of meeting the charge

must he given to him or her. It is with this object in view that Rule 10 has been framed The appellation of the Rule is ""necessary parties."" (Whether

it is a petition for divorce, or one for judicial separators on the ground that the respondent is living in adultery, or has committed adultery with tiny

person, the Rule enjoins upon the petitioner to make the alleged adulterer or adulterers a corespondent to it or to swear an affidavit stating therein

the reasons why it is nor. possible to do so Not only its object but its language also leaves no room for doubt that the Rule is mandatory in

character A similar view appears to have been taken by the Gujrat High Court in Mangunlal Budhaiabhai Patel Vs. Bai Dahi, AIR 1971 Gujrat 33,

10, Mr. Avtar Singh in support of his contention to the contrary, however, relied upon a Sin/de Bench decision of the Allahabad High Court in

Udai Narairi Bajpai Vs, Smt. Kusum Bajpai, AIR 1975 Allahabad 94, Apparently the observations made by the learned Judge in that case do

support Mr. Avtar Singh's contention but considered a little deep, it will be manifest that these observations do net convey what the learned Judge

actually meant to say, The learned Judge in the aforesaid case was dealing with rule 6 (a) of the Rules made under the Central Act, which is a

facsimile of rule SO. He was of the opinion that there were three options open to the petitioner; one, to make the adulterer or adulteress

corespondent to the petition at the time it is filed to file an affidavit in terms of cl. (d) of the Rule stating therein the reasons for not making him or

her as a respondent in case it is not possible to do so and three, to file an application for amendment of the petition in term? of Order 6 i ule 17 C.

P. C. for bringing the adulterer or the adulteress on the record before the petition is finally disposed of. Nowhere in his observations it is to be

found that the court can proceed to pass a final order in the absence of the adulterer or adulteress unless it is satisfied that it was not possible to

bring him or her on the record. It is in this sense that Rule 6 (a) was i of mandatory but only directory in character. Tie following observations of

the learned Judge are bound to make the position more clear:

The objective of the rules under Consideration can well be achieved even if at a subsequent stage the defects are removed. I am consequently of

the opinion that Rules 6 (a) and 6 (d) are not mandatory in the sense that failure to comply with them leaves the court with no option but to reject

or dismiss the petition. I am consequently of the opinion that there is no inconsistence between Rules 6 (a) and 6 (d) on the one hand and Order 6

Rule 17 and Order 1 Rule 10 of the Code on the other and that even if in the petition as originally filed the alleged adulterers are not impleaded as

corespondents, end the petition is also not accompanied by an application and an affidavit explaining the reasons for the petitioner's failure to do

so, in appropriate cases the court has jurisdiction to permit amendment of a petition under section 13 of the Act and allow the alleged adulterers to

be added as correspondents.

Whether or not, therefore, the coadulterer is made a party to the petition in the beginning or at a subsequent stage by invoking the provisions of

Order 6 Rule 17 C. P. C. the position remains that the court cannot proceed to pass a final order in his or her absence, unless for reasons to be

stated by the petitioner on affidavit it is satisfied that it is not possible to bring him or her on the record.

Mr. Avtar Singh then contended that the District Judge deleted the name of Saran Kaur from the array of respondents on the concession made

by the petitioner herself. In this behalf he invited my attention to his order dated 1941976 wherein it has been recorded that the counsel for the

appellant also conceded that Saran Kaur could not be a party to the petition because adultery was not a ground upon which I decree for judicial

separation could be claimed.

As already noticed, this order was an after mat of the earlier erroneous order passed by the District Judge on ll3U'76 What the appellant

therefore, conceded was the legal position that adultery u/s 14 could not be pleaded as a ground to obtain a decree for judicial separation. She

never conceded or even meant to concede that the respondent did not commit adultery with Saran Kaur. It is well settled that a concession made

on a point of law by its counsel will not bind the party, or no estoppels can be pleaded against H statute. This concession manifestly went counter

to Cl. if) of Section 10 which could not bind the appellant.

13 For the foregoing reasons, I How this appeal, set aside the judgment of the district Judge dated 311178 and send (he case back to him with the

directions that he will allow the appellant to make Saran Kour a party to the petition, call upon her to file objections to the petition, frame an

additional issue, bearing on the plea of adultery, allow the parties to lead evidence on the issue and after hearing them proceed to pass a final order

in accordance with law.

Parties are directed to appear before the District Judge on 851980.