Wife sought amendment of her written statement to plead non-joinder of the alleged adulterer as necessary party in her husband's divorce suit. The court held divorce was sought on cruelty and desertion, not adultery, so the amendment was unnecessary, and dismissed the writ petition.
No relief granted; writ petition dismissed.
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2024:UHC:8102
| SL. No. |
Dat e | Office Not es, r epor t s, or der s or pr oceedin gs or dir ect ion s an d Regist r ar ’s or der w it h Sign at u r es |
COURT’S OR JUDGE’S ORDERS |
|---|---|---|---|
| WPMS No. 2146 of 2024 Hon’ble Man oj Ku m ar Tiw ar i, A.C.J. |
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| Mr. Narendra Bali, Advocate for the petitioner. |
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| 2. Mr. Bhuwan Bhatt, Advocate for the respondent. 3. This petition filed under Article 227 of the Constitution is directed against order dated 02.07.2024, passed by Judge, Fam ily Court, Haridwar in Suit No. 415 of 2022, ‘Gaurav Naithani v. Smt. Sm riti’. By the said order, petitioner’s application seeking amendment in her written statement was rejected. |
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| 4. It is not in dispute that respondent (husband) filed a suit under Section 13 of Hindu Marriage Act, seeking divorce, which was registered as OS No. 415 of 2022 in the Court of Judge, Family Court, Haridwar. |
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| 5. Petitioner, who is wife, filed a written statement, and thereafter, she moved an application under Order 6 Rule 17 CPC, seeking leave to amend her written statement. By the said application, petitioner sought perm ission to add one para number as para 6A, in which, it was mentioned that since in the Divorce Petition, it is alleged that she is having relation with one Mr. Sagar, however, the concerned person, namely, Mr. Sagar |
2024:UHC:8102
| has not been impleaded as defendant |
|---|
| to Divorce Petition, therefore, Divorce |
| Petition is liable to be dism issed on |
| the ground of non-joinder of |
| necessary parties. The leave sought |
| by petitioner to amend the written |
| statement was refused by Family |
| Court vide order dated 02.07.2024. |
| Thus, feeling aggrieved, petitioner has |
| filed this writ petition, challenging the order dated 02.07.2024. |
| 6. Heard learned counsel for the parties and perused the record. |
| 7. Learned Judge, Fam ily Court, Haridwar has given valid reasons for rejecting prayer for amendment made by petitioner. It has been held that |
| divorce is sought on the ground of |
| cruelty and desertion, and adultery is |
| not a ground taken in the Divorce |
| Petition. 8. Learned counsel for petitioner has |
| drawn attention of this Court to para |
| nos. 6 & 10 of the Divorce Petition, for contending that adultery is one of the |
| ground for seeking divorce, however, from perusal of the Divorce Petition, it |
| is revealed that although some vague |
| allegation that petitioner is living in |
| adultery has been made in the |
| pleading, but, that is not the ground |
| for seeking divorce and divorce has |
| been sought on the ground of |
desertion and cruelty. |
| 9. Learned Counsel for respondent |
| has relied upon Rule 6 of Allahabad |
| High Court Hindu Marriage and |
| Divorce Rules, 1956, which reads as |
2024:UHC:8102
| under: - “6. 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 the alleged adulterer or adulteress a co-respondent to the petition unless he or she is excused by the Court from doing so 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 if a woman is leading the life of a prostitute and that the Petitioner knows of no person with whom adultery has been committed; or |
| (iv) any other reason that, the Court considers sufficient. |
| (b) I n every petition under Section 13 (1) and (2) 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 the condition in |
| Section 5 (1) is contravened the petitioner shall make the spouse alleged to be living at the time of marriage a co-respondent. |
| (d) If a petitioner does not make the alleged adulterer or adulteress a co-respondent he shall, at the time of presenting the petition, file a separate application supported by an affidavit giving the reasons.” |
| 10. By virtue of the aforesaid |
| statutory provision, petition seeking |
| divorce on the ground of adultery, if is |
filed without impleading the person |
| concerned with whom the other |
| spouse of the plaintiff is in adultery is |
| not impleaded as a party, then the |
| Divorce Petition would be liable to be |
2024:UHC:8102
dism issed for non-joinder of necessary parties. Thus, the amendment sought by petitioner becomes of no relevance, as the divorce petition filed by husband would be liable to be dism issed only on this ground that the necessary party has not been impleaded. In such view of the matter also, the am endment sought by petitioner was not required. Thus, learned Family Court was justified in rejecting petitioner’s application 11. In such view of the matter, there is no scope for interference in the matter. The writ petition fails and is dism issed. ( Man oj Ku m ar Tiw ar i, A.C.J.) 04.11.2024 Navin Digitally signed by NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, NAVEEN 2.5.4.20=3be23325146e76a0642bdf4943fb904 6f487df006da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A1038 19DA875643AF56D653D095C6ED9A86DAAB2 CHANDRA 1CE5, cn=NAVEEN CHANDRA Date: 2024.11.05 09:48:36 +05'30'
2 issues framed by the court
Whether the Family Court was justified in rejecting the wife's application under Order VI Rule 17 CPC to amend her written statement in the husband's divorce suit.
Whether a divorce petition not founded on adultery requires impleading the alleged adulterer as a necessary party.
5 provisions across 5 enactments
Smt. Smriti
Gaurav Naithani
Manoj Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
