Allowed

Royce v. Jiji C Johnson

Kerala HC22 Nov 2018OP (FC)/449/2018

Case brief

AI extract

What is this about?

A Single Bench of the Kerala High Court, exercising supervisory jurisdiction under Article 227, allowed a writ petition and quashed the Family Court's orders dismissing the petitioner's applications to amend his divorce petition to include adultery as a ground and to implead his wife's alleged brother as a co-respondent. The Court held that such defects are not inherently non-curable and remitted

What did the court decide?

The writ petition was allowed; the impugned orders were quashed; interim applications were restored to the Family Court for fresh disposal with reasonable opportunity of hearing.

Royce Vs Jiji C Johnson — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940

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OP (FC).No. 449 of 2018

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AGAINST THE ORDER DATED 10-11-2017 IN IA No.5352/2017 IN OP 969/2017 of FAMILY COURT, THRISSUR

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PETITIONER/PETITIONER:

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ROYCE AGED 32 YEARS S/O.THOTTEKATT ABRAHAM JOHN, TRAMVEVEIN, CHALAKUDI P.O., KUDAPPUZHA, THRISSUR DISTRICT.

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BY ADVS. SRI.SAIJO HASSAN SRI.NAGARAJ NARAYANAN SMT.P.PARVATHY SMT.SURYA P SHAJI SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.VISHNU BHUVANENDRAN

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RESPONDENT/RESPONDENT:

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JIJI C JOHNSON AGED 30 YEARS, D/O.CHERUPUDATHIL JOHNSON, NEHRU NAGAR, KURIACHIRA,THRISSUR DISTRICT - 680 006. BY ADV. SRI.G.SREEKUMAR (CHELUR)

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

OP (FC) No.449/2018

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'C:R:'

C.K. ABDUL REHIM, J., &

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R. NARAYANA PISHARADI, J.

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O.P (FC) No. 449 OF 2018

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DATED THIS THE 22^nd DAY OF NOVEMBER, 2018

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J U D G M E N T

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Abdul Rehim, J:

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Invoking the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India, the petitioner is challenging Ext.P5, P6 & P7 orders passed by the Family Court, Thrissur on 10-11-2017 in I.A. Nos.5352/2017, 5881/2017 & 5882/2017 in O.P. No.969/2017.

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The petitioner is the husband and the respondent is the wife. Their marriage was solemnized on 16-04-2014. Due to the estrangement in their marital relationship, the petitioner instituted O.P. No.764/2015 before the Family Court, Irinjalakuda seeking dissolution of the marriage on the ground of alleged desertion by the wife, under Section 13 (1) of the Hindu Marriage Act. The said original petition was subsequently transferred to Family Court, Thrissur and re-numbered as O.P. No.969/2017. The three interim applications mentioned above were filed by the petitioner in the said

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case. In one among the applications, the petitioner sought for an amendment of the original petition in order to incorporate an additional ground and relief, based on an allegation that the respondent is leading an adulterous life with her own brother. It is stated that, the petitioner had some suspicions about such a relationship even earlier. But he had not pleaded the same since he was not sure about it. Now the said fact became more clear and evident when the wife of the respondent's brother had filed a case before the Family Court, Thrissur as O.P No.1494/2014 seeking dissolution of their marriage by impleading the respondent herein as alleged adulterer. Further it is mentioned that, the sister-in-law of the respondent had also filed a private complaint before the Judicial First Class Magistrate, Thrissur alleging offence punishable under Section 498 A IPC, in which the respondent herein is also implicated as an accused. Under such circumstances, through the amendment, the petitioner seeks to incorporate an additional ground of adultery for dissolution of the marriage.

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The second among the interim applications was filed to implead the brother of the respondent as additional respondent (co-respondent/adulterer). The third interim application is to amend

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the 'cause title' of the original petition to include the name of the alleged adulterer.

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The court below had dismissed all the three interim applications through cryptic orders, similarly worded as follows;

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“Since adulterer cannot be implead subsequently in a case of divorce, the petition is dismissed.”

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Dismissal of the interim applications on the ground that adulterer cannot be impleaded subsequently in a case of divorce, is challenged as an illegal, erroneous and improper finding. It is contended that the amendment proposed will not change the character of the lis or the cause of action. So also it is contended that the amendment will not cause any prejudice either to the respondent or to the person sought to be impleaded, because they will get sufficient opportunity to contest the matter. On the other hand, refusal of the amendment will lead to prejudice to the petitioner, because it will preclude him to contest the case on legally valid grounds available to him, is the contention.

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The question remains no more 'res integra'. Rule 7 (4) of the Hindu Marriage (Kerala) Rules, 1963 stipulates that, in every petition presented by the husband for divorce on the ground that his wife is living in adultery with any person or persons, or for judicial

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separation on the ground that his wife has after solemnization of the marriage had sexual intercourse with any person or persons other than him, the petitioner shall state the name, occupation and place of residence of such person or persons so far as they can be ascertained. Rule 11 of the said Rules insists that, in every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has, after solemnization of the marriage, had sexual intercourse with any person, the petitioner shall make the alleged adulterer a co-respondent. The exemption from so doing can only be on any one of the grounds enumerated under clause (i) to (iv) of the Sub Rule (d) of Rule 11. The exemptions provided under clause (i) to (iii) of Rule 11 (d) are situations where; (1) the respondent is leading the life of a prostitute and that the petitioner knows of no person with whom the adultery has been committed, (2) the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it or (3) that the alleged adulterer is dead.

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A provision which is almost in pari materia is contained in Section 11 of the Divorce Act, 1869. A Division Bench of this court in

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the ruling in Kunhiraman V. Santha (1998 (1) KLT 556) held

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that, on failure on the part of the appellant to implead the adulterer as co-respondent in a case presented on the ground that his wife is living in adultery, the petition cannot be considered as one filed in accordance with the Act, and as one satisfying the mandatory requirement under the Rules framed by the High Court of Kerala. An appeal challenging the order of dissolution of the marriage granted by the court below was allowed and the order was reversed on that ground. The above dictum was confirmed by a Full Bench of this court in Joseph V. Mary (1999 (2) KLT 786 (F.B.) . While dealing with provisions of Section 11 of the Divorce Act, 1869, it was observed that, unless leave to dispense with the presence of the corespondent is granted, the petition cannot be proceeded and the court has no jurisdiction to entertain the petition. Section 11 makes it obligatory on a husband in a petition for dissolution of the marriage on the ground of adultery, to make the alleged adulterer a corespondent, unless he is excused from doing so on one of the three grounds mentioned therein. With respect to the mandatory requirement under Section 11 of the Divorce Act, 1869, the same view was taken in an earlier Full Bench ruling of this court, in Idicula Jacob V. Mariyamma (1975 KLT 792 (FB) . This was

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again followed by a Division Bench in Jose V. Ali Joseph (1990 (2) KLT 224) and also in Thomas Kurian V. Meena (2000 (1) KLT 183) (FB) .

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It is pertinent to note that the Full Bench in Idicula Jacob (supra), after setting aside the order of dissolution passed by the court below, had permitted the appellant to adduce fresh evidence by leaving open his liberty to seek amendment of the petition in the light of the findings rendered. So also, the other Full Bench in Joseph (supra) had remitted the case back to the District Court with a direction to re-hear the matter after observing the formalities under Section 11 of the Divorce Act, 1869. In Ali Joseph (supra) also, the case was remitted back to the court below in order to enable the appellant to file application as contemplated under Section 11 of the Act for excusing the appellant from making the adulterer a corespondent.

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In none of the above cited decisions, this court had taken any view that a petition for divorce filed without impleading the alleged adulterer as co-respondent cannot be amended later in order to rectify the defect at any subsequent stage, by impleadment of the alleged adulterer as a co-respondent. Therefore this court is at a loss

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to understand the reasoning behind the observation made by the court below, that the adulterer cannot be impleaded subsequently in a case of divorce.

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Probably, the learned Judge of the Family Court may be placing reliance on one of the oldest cases decided by this court, in Ayyappan V. Vasantha (1987 (1) KLT 504) . In the said decision this court held that, in all the cases which are not covered under Rule 11 (d) it is incumbent upon the petitioner to implead the adulterer as co-respondent, it was further observed that;

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“Having not done so when the original petition was filed before the court and having not filed a petition supported by the affidavit under Rule 11 (d), the petitioner cannot at a later stage implead the adulterer as co-respondent.”

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It is a case where the application for dissolution of marriage was dismissed on the ground that the adulterer was not made a party in the proceedings. The High Court observed that, when the petition was pending before the trial court, no attempt was made to implead the adulterer as co-respondent. That seems to be the reason why this court observed that, the petitioner at a later stage cannot implead the adulterer as co-respondent. The petitioner in the said case had no case that he was not aware of the identity of the person with

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whom the adultery was committed. Nor he had a case that his wife was leading the life of a prostitute and that he was not aware of the names of the persons with whom she had sexual intercourse. Admittedly, no leave was also granted to the petitioner under Rule 11 (d). The definite case therein was that, the respondent had developed illegal intimacy with a particular person, whose name and address and other particulars were specifically stated in the petition. Therefore the court found that, obviously the petitioner cannot contend that he was not aware of the name and address of the person with whom his wife was having illicit intimacy. Seemingly, it was under such circumstances, that the court below held that the petition is not maintainable and dismissed it. At the appellate stage, it is evident that, the counsel for the appellant sought for an opportunity to implead the co-respondent and sought for a remand of the case for the said purpose. But such a request was declined by observing that, no such attempt was made to implead the adulterer as co-respondent while the petition was pending before the trial court. However, it is pertinent to note that, this court made it clear that the dismissal of the appeal would not be a bar to the petitioner filing a proper petition with proper person on the party array.

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The above finding in Ayyappan (supra), cannot in our view, be termed as a dictum laid to the extent of prohibiting impleadment of the adulterer as co-respondent at any later stage, during when the petition for divorce is pending before the trial court. All the rulings cited above will not give any indication that the Division Bench in Ayyappan (supra) had in any manner prohibited amendment of petitions for divorce, for adding the ground of adultery or for impleadment of the alleged adulterer as a co-respondent, at any stage after institution of the case. In other words, we do not find any reason to hold that, in any application for dissolution of marriage on the ground of adultery, which remains inherently defective on account of non-impleadment of the adulterer as a co-respondent, cannot be permitted to be rectified. Eventhough the defect in this respect will go deep into the very maintainability of the petition for divorce, because of the mandatory requirements under Section 11 of the Divorce Act, 1869 and under Rule 7 (4) and 11 of the the Hindu Marriage Rules (Kerala), 1963, we are not persuaded to hold that such a defect is non-curable and that no subsequent impleadment or amendment can be permitted under any circumstances. We are persuaded to clarify that the decision in Ayyappan (supra) does not

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lay down any proposition prohibiting such impleadment at any time after filing of the petition seeking dissolution of the marriage.

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In the present case, the amendment was sought for on the ground that the petitioner became convinced about the adulterous life of the respondent with her own brother, when the wife of the brother had instituted cases by arraying the respondent herein as the adulterer (co-respondent). Therefore, the rejection of the amendment application as well as the impleading application, merely by stating the reason that the adulterer cannot be impleaded subsequently, is a finding which is not supported by sufficient reasons. We are of the considered opinion that the impugned orders which are based only on such a reason, cannot be sustained. We are of the opinion that the matter requires re-consideration in view of the observations and findings contained hereinabove.

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Therefore the above original petition is hereby allowed. Exts.P5, P6 & P7 orders passed by the Family Court, Thrissur in I.A. Nos.5352/2017, 5881/2017 & 5882/2017 in O.P. No.969/2017, dated 10^th November 2017 are quashed. The said interim applications are restored on the files of the Family Court. The Family Court is directed to dispose of those applications afresh, taking note of the

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observations and findings contained herein above, and to pass appropriate orders therein, after affording reasonable opportunity of hearing to the parties concerned.

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The above said interim applications shall be disposed at the earliest possible, at any rate, within a period of one month from the date of production of a copy of this judgment.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

JUDGE

AMG

OP (FC) No.449/2018

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE ORIGINAL 2015 ON THE FAMILY COURT,	PETITION AS O.P.NO.764 OF THRISSUR.
EXHIBIT P2	TRUE COPY OF THE AMENDMENT IN O.P.969 OF 2017.	PETITION AS I.A.5352 OF 2017
EXHIBIT P3	TRUE COPY OF THE AMENDMENT O.P.969 OF 2017.	PETITION I.A.5881 OF 2017 IN
EXHIBIT P4	TRUE COPY OF THE AMENDMENT O.P.969 OF 2017.	PETITION I.A.5882 OF 2017 IN

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 10.11.2017 IN I.A.5352 OF 2017 IN O.P.969 OF 2017.

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EXHIBIT P6	TRUE COPY OF THE ORDER DATED 10.11.2017 IN I.A.5881 OF
	2017 IN O.P.NO.969 OF 2017.
EXHIBIT P7	TRUE COPY OF THE ORDER DATED 10/11/2017 IN I.A.5882 OF
	2017 IN O.P.969 OF 2017.

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RESPONDENTS' EXHIBITS

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NIL

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AMG

Royce v. Jiji C Johnson

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Royce v. Jiji C Johnson

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