ORDER
Prabha Sridevan, J.
1. This revision has been filed against the interlocutory order passed in HMOP.No. 30 of 2002, impleading the second respondent herein as correspondent.
2. The first respondent herein filed the above OP for divorce on the grounds of adultery, cruelty and desertion. The petitioner herein filed her counter denying all the allegations. Subsequently, the first respondent filed this application in I.A.No. 31 of 2003 to implead the second respondent alleging that he is the paramour and that his wife (the petitioner herein) is living with him in adultery. According to the first respondent, the presence of the second respondent was necessary for effective adjudication for the main controversy.
3. The petitioner herein resisted the said application on the ground that it is not necessary to implead the second respondent and the first respondent having failed to raise specific pleadings and having failed to set out specific acts of adultery and having failed to speak about the same when he was in the box as a witness, cannot now fill up the lacuna in his case by impleading the second respondent.
4. The Court below came to the conclusion that the first respondent had stated in the main petition, that the petitioner has developed illicit intimacy with her sister’s husband (the 2nd respondent herein) and was continuously living in adultery with her sister’s husband and that in Ex.R-2, reply notice the name of the alleged paramour is specifically mentioned, but in the petition, as well as in the box, the first respondent had only stated that the petitioner was living an adulterous life with her sister’s husband without naming the second respondent. The Court below came to the conclusion that without impleading the second respondent, the issue cannot, be fully decided. The Court below referred to the decision in Easwaran v. Mani, 2001 (1) MLJ 318, in support of its conclusion.
5. The learned counsel appearing for the petitioner would submit that while the impleadment of the co-respondent is made mandatory in the provisions of the Indian Divorce Act, the legislature thought it fit not to introduce a similar Section in the Hindu Marriage Act and therefore, it is not necessary to implead the second respondent. The learned counsel would also submit that the allegations in the pleadings are vague, the oral evidence is also vague and now this petition has only been filed to harass the petitioner.
6. The learned counsel also submitted that in Easwaran v. Mani, 2001 (1) MLJ 318, the observation was only a passing observation and that was not the ratio of the decision and the learned counsel referred to the following sentence in paragraph-13 of the judgment:
“The person with whom the wife had illicit relationship, should have been named and made a party in the proceedings,”
The learned counsel submitted that this cannot be construed to mean that in all cases where adultery is alleged, the alleged paramour must be made a correspondent.
7. The learned counsel referred to the decision The Secretary, Saliar Mahajana Higher Secondary Schools, Aruppukottai, Virudhunngar District v. G. Subburai and Ors., , where the First Bench of this Court had held that the decisions of Supreme Court laying down a principle of law will alone be precedent, having a binding effect on the High Court and directions issued by the Supreme Court without laying down any principle of law, are not precedents.
8. The learned counsel appearing for the respondent on the other hand submitted that in the pleadings it is clearly stated that the petitioner is having an adulterous relationship with her sister’s husband, who is none other than the 2nd respondent. The learned counsel submitted that the Court below had rightly held that the presence of the second respondent was necessary to adjudicate the dispute.
9. The extract from the judgment, in Easwaran v. Mani, 2001 (1) MLJ 318, was not just a passing comment and this is seen from the following paragraphs in the said judgment:
“10….. The husband also had not given the name of any particular individual as the adulterer. In the absence of any particular individual being named and in the absence of proof of want of access to the parties living in the same village, it is very dangerous to come to the conclusion that the wife committed adultery exposing herself to be slapped with a proceedings for divorce……..
14. It has been held in Rajee v. Baburao, 1995 TNLJ 239 as follows:
“In a petition for divorce, rules require that the specific act of adultery and the occasion when and the place where such acts were committed together with the name and address of the person with whom such adultery was committed, should be given”.
10. From the Mayne’s Hindu Usage Law (15th Edition), the following extracts may be relevant:
“It is not necessary for the aggrieved husband, to prove with whom his erring wife had illicit relations. It is enough for him to prove that she was leading an adulterous life……. The charge of adultery is a serious charge as it casts aspersions on the character of the spouse and affects his/her reputation in the Society…… Therefore, not only the pleadings in respect of the charge of the adultery should be specific it should also be established in all probabilities.
11. In Mirapala Venkatammana v. Mirapala Peddiraju, 2000 (II) DMC 40 (DB), the Division Bench of the Andra Pradesh High Court held that the failure of the husband to implead the alleged adulterer rendered the petition bad for non-joinder of necessary parties, Paragraph 2 of the said judgment is relevant.
“2. Even though the said plea was recorded by the lower Court, the lower Court did not concentrate on that aspect at all. In a case for divorce basing on adultery, the adulterer is a necessary party and ought to be made second respondent in the instant case. But, the respondent/husband had failed to implead the alleged adulterer and as such the opposite party is hit by non-joinder of necessary party. We are fortified in our view by the judgment of Allahabad High Court in Udai Narain Bajpal v. Smt. Kusum Bajpai, , wherein the Court held as follows;
“Learned Counsel for the respondent also placed reliance on the decision in AIR 1942 All. 223 (supra) for the purpose of contending that till such time as the appellant’s application for amendment of his petition by addition of the alleged adulterers as co-respondents was allowed and the petition was amended accordingly, it was not in accordance with law and not maintainable. It was urged that till the co-respondents were impleaded it was not open to the Court either to frame issues in the petition or admit evidence on Issue No. 5 and consequently the framing of the issues by the Trial Court as well as the finding on Issue No. 5 are without jurisdiction. There is force in this contention which must be accepted”.
In that case, on facts the Division Bench came to the conclusion that the allegation of adultery was without any Legally acceptable evidence.
12. For all the above reasons, the order impleading the co-respondent cannot be set aside as erroneous or without jurisdiction. The learned counsel for both sides referred to the extracts portions from the pleadings and from the evidence to support their respective cases. I am not referring to them, since any observation made here may influence the Family Court Judge, who shall decide the matter in accordance with law.
13. The CRP is therefore dismissed accordingly. Consequently, connected CMP is closed.