Bombay High Court
Reena Patani vs Sapna Akshay Bamb And Anr on 8 September, 2023
Bench: Amit Borkar
2023:BHC-AS:26271
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6318 OF 2023
X ... Petitioner
V/s.
Y ... Respondents
Ms. Sharon Patole for the petitioner.
Mr. Abhijit Sarwate with Ms. Hardev K. Aidhen and Mr.
Ajinkya Udane for the respondents.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 8, 2023
P.C.:
1. Considering the controversy involved, names of the parties
should be masked while uploading the order.
2. This writ petition under Article 227 of the Constitution of
India takes exception to the order dated 1 August 2022 passed by
Family Court No.3, Pune rejecting application filed below Exhibit
3. The petitioner/original respondent No.2 filed application
below Exhibit 127 seeking deletion of her name from the divorce
petition filed by the original petitioner (wife). According to the
petitioner, she being a lady does not fall within the definition of
"adultery". There is no material on record to show that she had
ever committed adultery. Moreover, from the material on record it
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appears that there are other persons against whom adultery is
alleged but they are not made parties. During the course of
submissions, it is submitted that prayer for payment of
compensation in the divorce petition, i.e. prayer 111(o) is not
maintainable against the petitioner. In support of her submission,
she placed reliance upon the judgment of the Apex Court in the
case of Joseph Shine v. Union of India reported in (2019) 3
SCC 39.
4. On perusal of the impugned order, it appears that the Trial
Court rejected the request of the petitioner relying on Rule 5 of the
Hindu Marriage and Divorce Rules, 1955, which reads thus:
"5. Necessary Parties.-- (a) In every petition for
divorce or judicial separation on the ground that the
respondent is living in adultery or has committed adultery
with any person, the petitioner shall make such person a co-
respondent. The petitioner may, however, apply to the Court
by an application supported by an affidavit for leave to
dispense with the joinder of such person as a co-respondent
on any of the following grounds:
(i) that the name of such person is known to the
petitioner although he has made due efforts for
discovery;
(ii) that such person is dead;
(iii) that the respondent being the wife is leading a
life of a prostitute and that the petitioner knows
of no person with whom adultery has been
committed;
(iv) for any other sufficient reason the Court may
deem fit to consider.
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(b) In every partition under section 13(2)(4) of the Act the
petitioner shall make "the other wife" mentioned in that
section a co-respondent.
(c) In every petition under section 11 of the Act on the
ground that condition in section 5(1) is contravened, the
petitioner shall make the spouse alleged to be living at the
time of the marriage a co-respondent."
5. On perusal of the divorce petition, it appears that the
petitioner has made allegations that respondent No.1 is living with
adultery. In the divorce petition, allegations are made against the
petitioner that she indulged in the acts of adultery. The allegations
to that effect are made in paragraphs 43 to 49.
6. Therefore, rejection of an application to delete respondent
No.2 based on Rule 5 cannot be termed as perverse order.
7. In so far as prayer for deletion of prayer clause 111(o) is
concerned, it appears that such prayer was not made before the
Family Court. This Court exercised power under Article 227 of the
Constitution of India which is essentially a supervisory power to
ensure that subordinate Courts act within their jurisdiction. In the
absence of adjudication by the subordinate Court, the Court under
Article 227 of the Constitution of India for the first time cannot
exercise power of judicial review. Such power can be exercised
under the last clause of Article 227 of the Constitution of India
where the Constitution empowers High Court to issue writ for "any
other purpose" but such power can be exercised only as a
consequence of judicial review of exercise of discretion by the
subordinate Court. Without such power of judicial review, power
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for "any other purpose" cannot be exercised.
8. Even considering the relief sought by the petitioner on
merits, reliance is placed on Rule 16 of the said Rules by the
petitioner. On perusal of Rule 16, it appears that the said Rule
governs payment of costs. Such power needs to be exercised by the
Court at the time of final hearing of the proceedings. The power
conferred on the Court under Rule 16 is in a petition presented by
the husband.
9. In the facts of the case, the relief claimed is relief of
compensation and not costs. Moreover, for deletion of prayer in
the petition, powers analogous to Order 6 Rule 16 needs to be
exercised. It is well settled that unless pleadings are scandalous,
vexatious or is made with an intention to embarrass the trial, such
trial need not be exercised by the Court. It is well settled that such
power need to be exercised in exceptional circumstances as the
Court cannot regulate right of a party to make pleadings.
Therefore, in my opinion, the prayer made by the petitioner for
deletion of prayer clause 111(o) of the divorce petition need not
be accepted.
10. Reliance placed on the judgment in the case of Joseph
Shine (supra) is wholly inapplicable in the facts of the present
case as the pleading is regulated by Rule 5 of the said Rules. Once
rights of the parties are governed by the provisions of Constitution
or law within the meaning of Article 13, it carves out exception to
Article 21 of the Constitution of India unless such law is declared
as unconstitutional by the competent Court. In the absence of
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challenge to Rule 5 making necessary averments in the petition,
judgment in the case of Joseph Shine (supra) is inapplicable in
the fact situation of the present writ petition.
11. On overall consideration of the matter, no interference under
Article 227 of the Constitution of India is called for.
12. The writ petition, therefore, stands dismissed. No costs.
(AMIT BORKAR, J.)
