Without adulterer as a party or co respondent in divorce petition can not be proved the adultery.

Section 11 in THE DIVORCE ACT, 1869

17 [ 11 Adulterer Or Adulteress To Be Co-Respondent. —On A Petition For Dissolution Of Marriage Presented By A Husband Or Wife On The Ground Of Adultery, The Petitioner Shall Make The Alleged Adulterer Or Adulteress A Co-Respondent, Unless The Petitioner Is Excused By The Court From So Doing On Any Of The Following Grounds, Namely:—

(A) That The Wife, Being The Respondent Is Leading The Life Of A Prostitute Or The Husband, Being Respondent Is Leading An Immoral Life And That The Petitioner Knows Of No Person With Whom The Adultery Has Been Committed;

(B) That The Name Of The Alleged Adulterer Or Adulteress Is Unknown To The Petitioner Although The Petitioner Has Made Due Efforts To Discover It;

(C) That The Alleged Adulterer Or Adulteress Is Dead.]

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JAIDEEP SHAH V. RASHMI SHAH MISS RASHMI VYAS .

4. Brief facts leading to filing of the writ petition are that petitioner had filed a petition seeking divorce against respondent No. 1 on the ground of adultery and cruelty. In the petition filed by the petitioner under section 13 of the Hindu Marriage Act the petitioner impleaded the respondent No. 2 as respondent in the petition. However, the trial Court held that section 13 of the Hindu Marriage Act, 1955, relates only to proceedings of divorce between husband and wife and, therefore, the third party cannot be impleaded in the aforesaid proceedings. It was further held that presence of respondent No. 2 is not necessary to pass an effective decree in the case. Accordingly, the petitioner was directed to delete the name of respondent No. 2 from the cause title.

 The petitioner has referred to Rule 2 as well as Rule 5 of the Rules framed by this Court under the provisions of Hindu Marriage Act. Learned counsel for the petitioner submits that under Rule 2(7)(e)(2), in a petition of divorce on the ground of adultery, rape or sodomy, the date and the place of the act or the acts and the name and address of the person or persons with whom these acts were committed by the respondent are required to be mentioned. While referring to Rule 5 of the Rules, learned counsel for the petitioner has submitted that Rule 5 enjoins a duty on the Court to issue notice to the respondent and co-respondent, if any. Learned counsel for the petitioner has further submitted that in a petition based on adultery, the Court will have to record a finding that the spouse has voluntarily sexual intercourse with another person and, therefore, such a finding will adversely affect the reputation of a person who has alleged to have committed an adulterous act and, therefore, an adulterer is a proper party to the petition. In support of his submission, learned counsel for the petitioner has placed reliance on a Division Bench decision of Karnataka High Court in the case of Arun Kumar Agrawal vs. Radha Arun and other, AIR 2003 Karnataka 508.

The question of addition of a party under Order 1, Rule 10 of the Code of Civil Procedure is generally of judicial discretion which has to be exercised in the facts and circumstances of a particular case. Where the Court is of the opinion that by adding a party it would be in a better position to effectively and completely adjudicate the controversy involved in the suit, in such a case the concerned person should be impleaded as a party in the proceeding. See: Razia Begum vs. Sahebzadi Anwar Begum and others, AIR 1958 SG 886, Balraj Taneja and another vs. Sunil Madan and another, AIR 1999 SC 3381 and Ruma Chakraborty vs. Sudha Rani Banerjee and another, AIR 2005 SC 3557. The distinction between necessary and proper party is also well settled in law. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. See: Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524.

 In a petition under section 13(1)(i) of the Hindu Marriage Act, 1955, an allegation of voluntary sexual intercourse by the spouse with a third party is required to be adjudicated. The High Court in exercise of power under sections 14 and 21 of the Hindu Marriage Act 1955 has framed Rules. Under Rule 2(7)(e)(2) of the Rules, in a petition seeking dissolution of marriage on the ground of adultery, the date and place of the adultery and the name and address of the person with whom the adultery was committed by the respondent is required to be stated. Rule 5 enjoins a duty on the Court to issue notice to the respondent and co-respondent, if any. The aforesaid Rule is in consonance with the principles of natural justice as the finding recorded in the suit would adversely affect the reputation of the concerned person and, therefore, such a person should have an opportunity to defend his reputation before such a finding is recorded. My aforesaid conclusion finds support from a Division Bench decision of Karnataka High Court reported in Arun Kumar Agrawal, supra. So far as the reliance placed by the learned counsel for the respondent No. 2 on the decision of this Court in Neelam Tiwari, supra is concerned, in the said case, the adulterer was not impleaded as a party in the petition for divorce before the trial Court. In appeal, an objection was raised that since the adulterer was not impleaded as co-respondent, therefore, the petition filed under section 13 of the Hindu Marriage Act, 1955 was bad on account of non-joinder of necessary party. In the aforesaid context, the learned Single Judge of this Court held that Rules framed by this Court does not mandatorily require the impleadment of the adulterer. The ratio laid down in the aforesaid case is of no assistance to learned counsel for the respondent No. 2, in the facts and circumstances of the case.