Karnataka High Court Holds Adulterer Is Proper But Not Necessary Party in Divorce Plea

A husband had appealed against a Family Court judgment and decree rejecting his petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act 1955. The Division Bench of Justice M.I. Arun and Justice Usharani held the Family Court was wrong to treat the petition as not maintainable for failure to array the alleged adulterer. It dismissed the appeal on the ground that adultery was not proved.

They married in 2012 according to customs prevailing under Hindu law. A few months later, the respondent wife expressed unwillingness to continue residing in the joint family, criticised the appellant for not securing a stable and definite source of income, and said she had married him only due to pressure from her parents.

The husband alleged his wife was caught with another man, who snatched her mangalsutra and escaped on a motorcycle. He stated that when the respondent was handed over to the police she disclosed an illicit relationship and said she had conceived out of that relationship. Advocate C.S. Shettar represented the appellant before the High Court.

At trial, the Family Court had held the divorce petition was not maintainable because the adulterer had not been arrayed as a party. The Bench referred to the High Court's judgment in Arunkumar Agarwal Vs. Radha Arun and another (2004), where an adulterer was held to be a proper party to proceedings under Section 13(1)(i) of the Act and not a necessary party. It said, "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."

Evidence on adultery claim rejected

On the facts, the Bench found the appellant had not witnessed the incident and had learnt about it from information given by his aunt and her son. In cross-examination, however, he deposed that he found the respondent and the other man in the custody of his aunt. The complaint was lodged by PW1 after six days. The Bench observed that PW2 and PW3, described as eyewitnesses to the alleged incident, were the aunt and her son and related to the appellant. It said, "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."

The respondent admitted in evidence that she remained at a rehabilitation centre for three days and that her mother took her from there to their village. The Bench said, "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."

On the plea that the respondent had conceived from the alleged relationship, the Bench recorded that she answered the child would be born to the appellant and that she was not ready to undergo a DNA test. It held it was for the appellant to prove non-access to dispel the presumption arising under Section 112 of the Indian Evidence Act, 1872. Holding that nothing much was elicited in support of the appellant's case, the Bench dismissed the appeal.