Allahabad High Court
Umesh Chauhan vs Anjali Chauhan on 3 December, 2022
Bench: Surya Prakash Kesarwani, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 3
Case :- FIRST APPEAL No. - 884 of 2022
Appellant :- Umesh Chauhan
Respondent :- Anjali Chauhan
Counsel for Appellant :- Debee Shanker Pandey,Shivendra Nath Singh
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Rajendra Kumar-IV,J.
Heard Sri S.N. Singh, learned Counsel for the plaintiff-appellant/husband.
This appeal has been filed praying to set aside the ex-parte judgment and order dated 15.10.2022 in Marriage Divorce Petition No.755 of 2020, (Umesh Chauhan versus Anjali Chauhan), under Section 13(1) of the Hindu Marriage Act, 1955 passed by Additional Principal Judge, Family Court, Court No.3, Deoria.
According to the plaintiff-appellant, he and defendant-respondent were married to each other on 12.12.2014. The defendant-respondent is presently working as Assistant Accountant in the Health Department at Safai, District Etawah. It appears that there arose some dispute due to which the plaintiff-appellant filed the aforesaid divorce petition for divorce on the ground of adultery. However, he had not impleaded the adulterer as defendant in terms of Rules 5 and 6 of the Hindu Marriage and Divorce Rules, 1956. The aforesaid divorce petition has been dismissed by the impugned ex-parte judgment and order dated 15.10.2022 passed by Additional Principal Judge, Family Court, Court No.3, Deoria. Aggrieved with the ex-parte judgment and order dated 15.10.2022, the plaintiff-appellant has filed the present appeal under Section 19 of the Family Court's Act, 1984.
We find that as per provisions of Order 1 sub rule (2) of Rule 10 of Code of Civil Procedure, the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be directed to be added either upon or without the application of either party, and on such terms as may appear to the Court to be just. In the case of Church of Christ Charitable Trust and Educational Charitable Society Represented by Its Chairman versus Ponniamman Educational Trust Represented by its Chairpersons/Managing Trustee, (2012) 8 SCC 709, (paragraph no.26), Hon'ble Supreme Court had laid down the law that "when the plaintiff itself persists in not impleading a necessary party in spite of objection, the consequences of non-joinder may follow. However, the said objection should be taken in the trial Court itself so that the plaintiff may have an opportunity to rectify the defect.
In paragraph no.14 of her additional written statement, the defendant-respondent, has stated as under:-
"14. यह कि वास्तविकता यह है कि वादी अपनी यौन दुर्बलता व अक्षमता के कारण डिप्रेशन की स्थिति में हो गया है तथा बार-बार हम प्रार्थिनी पर झूठा चारित्रिक आरोप लगाता रहता है। जिसकी वजह से हम प्रार्थिनी का वैवाहिक जीवन अत्यन्त ही दुखद व नारकीय बन गया है। ऐसी स्थिति में विवश होकर मै प्रार्थिनी वादी मुकदमा से मुक्ति पाना चाहती हूँ। इसके विपरीत याचिका के पैरा 10 व 11 में किया गया कथन मिथ्या है।"
Thus the defendant-respondent herself has not taken any objection to non impleadment of the alleged adulterer in the aforesaid marriage divorce petition. Therefore, the Court should have given an opportunity to the plaintiff-appellant to implead the alleged adulterer or to file an affidavit in terms of Rule 6 (d) of the Hindu Marriage and Divorce Rules, 1956. If the plaintiff-appellant still did not implead the alleged adulterer as defendant then the Court could have dismissed the divorce petition due to non-joinder of parties. Since in the present set of facts, without there being any objection from the defendant-respondent/wife; the Court below at his own, dismissed the divorce petition without affording any opportunity to the plaintiff-appellant to implead the alleged adulterer, therefore, we find that ex-parte impugned judgment and order dated 15.10.2022 cannot be sustained. Consequently, the impugned judgment and order dated 15.10.2022 is hereby set aside.
The Marriage Divorce Petition No.755 of 2020 is restored to its original number. Liberty is granted to the plaintiff-appellant to move an application before the Court below in the aforesaid Marriage Divorce Petition No.755 of 2020 to implead the alleged adulterer within three weeks from today along-with a certified copy of this judgment.
On submission of the aforesaid impleadment application, the Court below shall issue notice to the defendant-respondent/wife within three days and after affording opportunity of hearing to the parties, shall decide the impleadment application in accordance with law within next one month. Thereafter, the Marriage Divorce Petition No.755 of 2020 shall be decided by the Court below in accordance with law expeditiously preferably within next six months, after affording opportunity of hearing to all the parties in the aforesaid divorce petition.
With the aforesaid directions, the appeal is disposed of.
Order Date :- 3.12.2022
I.A.Siddiqui
