Orissa High Court
Harekrushna Behera vs Manasi Jena on 3 January, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 36 of 2023
Harekrushna Behera .... Appellant
-versus-
Manasi Jena .... Respondent
Advocates appear in the case:
For appellant: Mr. Subash Chandra Acharya, Advocate
For respondent: Mr. A.K. Swain, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO
JUDGMENT
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Dates of Hearing: 6th December, 2023 and 3rd January, 2024
Date of Judgment: 3rd January, 2024
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ARINDAM SINHA, J.
1. Mr. Acharya, learned advocate appears on behalf of appellant-
husband. He submits, his client is aggrieved by judgment dated 13 th January,
2023 made by the family Court. His client had filed for divorce on the
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ground of cruelty. Though impugned judgment was made ex-parte against
respondent-wife, divorce was not granted.
2. He demonstrates from impugned judgment, the Court below
appreciated that his client's ground for claiming divorce was cruelty. The
Court went on to hold cruelty was established but dismissed the civil
proceeding on technicality of non-joinder of party. The Court below had
erred in failing to appreciate that his client had not taken the ground of
adultery but pleaded the fact to establish cruelty.
3. Mr. Swain, learned advocate appears on behalf of respondent-wife
and submits, his client was precluded from filing written statement in the
family Court. His client has good contentions in defence against appellant's
claim for dissolution of the marriage.
4. Allegation of appellant-husband was accepted to be true because
respondent-wife had not contested at trial, to test appellant-husband's
evidence by cross-examination. The Court cannot be faulted for concluding
as such.
5. Claim of appellant-husband for dissolution of the marriage was
rejected, as aforesaid, on technicality of not having added the paramour as a
necessary party, required by rule 5 in Hindu Marriage and Divorce (Orissa
High Court) Rules, 1956. It is apparent the rules were made in exercise of
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power under section 21 in Hindu Marriage Act, 1955. The provision is
reproduced below.
"21. Application of Act 5 of 1908- Subject to the other
provisions contained in this Act and to such rules as the High
Court may make in this behalf, all proceedings under this Act
shall be regulated, as far as may be, by the Code of Civil
Procedure, 1908 (5 of 1908)"
6. Code of Civil Procedure, 1908 by order I rule 3 provides for who may
be added as defendants in a suit. The provision is reproduced below.
"3. Who may be joined as defendants.- All persons may be
joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the
same act or transaction or series of acts or transactions is
alleged to exist against such persons, whether jointly, severally
or in the alternative; and
(b) if separate suits were brought against such persons, any
common question of law or fact would arise."
Where a husband alleges adultery and dissolution of the marriage under
clause (i) in section 13(1) of Hindu Marriage Act, 1955, he cannot be said to
have a right of relief against the paramour. In the circumstances, the
paramour is not a necessary party-defendant in a suit filed, to be tried on
application of the Code. However, by the rules a paramour has been made a
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necessary party. We reproduce below clause (a) under rule 5 as is relevant
for our purpose.
"5. Necessary parties- (a) In every petition for divorce or
judicial separation on the ground that the respondent is living a
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 unknown 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 the 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."
7. Though the rule mandates making of the paramour as a necessary
party but exceptions have been provided where such person may not be
made a party. Therefore, the mandate of the paramour 'shall' be made a
party is to be interpreted as to be made party where possible. On query from
Court Mr. Acharya submits, no question was put by the family Court to his
client in the box requiring information regarding address of the paramour.
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He submits, all his client knows is that the paramour does business in
Sector-15, Noida in State of Uttar Pradesh. We made this query because
section 165 in Evidence Act, 1872 empowers the Judge to, inter alia, ask
questions.
8. On noticing allegations made by appellant-husband of abortion and
documents exhibited as obtained by him under Right to Information Act,
2005 to demonstrate that respondent-wife suffered inter uterine death of the
foetus thereafter expelled, we think fit to direct remand for the case to be
tried on contest. This direction has nothing to do with the family Court
having proceeded ex-parte against the wife but a combination of factors
regarding the technicality of adherence to the rule held as fatal to appellant-
husband's case and respondent-wife being before us to contest the appeal.
9. For reasons aforesaid, impugned judgment is set aside with direction
for remand under rule 23-A in order-XLI of the Code for trial on all issues.
The family Court need not be detained by non-joinder of the paramour as on
query from Court Mr. Swain submits, his client does not know alleged
paramour. We have not expressed any opinion on the merits. In further
exercise of our appellate power, we direct that respondent-wife may file
written statement by 16th January, 2024. We make it clear our direction is
mandatory as filing of written statement stood earlier precluded by the
family Court. On perusal of the petition it appears that appellant-husband
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had sought dissolution of the marriage on grounds under clause (i) and (i-a)
under section 13(1). On remand, the case will be accordingly tried. We are
confident the family Court will expeditiously deal with the case on remand.
10. The appeal is accordingly disposed of. Registry ill communicate
this order to the Court belo .
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
dutta/sks
Designation: PERSONAL ASSISTANT
