IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.45496 OF 2013 (GM–FC) AND WRIT PETITION NO.45504 OF 2013 BETWEEN:
Smt. Sangeetha, D/o Ballachanda Thammaiah, Aged about 38 years, R/at A-3, Casa Lavelle – III, No.85, Lavelle Road, Bengaluru – 560 001.
(By Ms. Shridevi Bhosale, Advocate for Sri. Amar Correa, Advocate) … Petitioner AND:
Sri. Pavan Muthappa Biddatanda, S/o late Biddatanda Muthappa, Aged about 38 years, R/at A-3, Casa Lavelle – III, No.85, Lavelle Road, Bengaluru – 560 001.
(By Smt. Jayashree, Advocate) … Respondent These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the common order dated 21.09.2013 passed by the II Addl. Family Court at Bangalore in MC No.391/12 on IA No.2 and 3 which is at Annexure – A and consequently dismiss the application filed by the respondent under Order 1 Rule 10[2] read with Section 151 of CPC and under Order 6 Rule 17 read with Section 151 of CPC 1908.
These Petitions coming on for Orders, this day, the Court made the following:-
ORDER Ms. Shridevi Bhosale, learned counsel for Sri. Amar Correa, learned counsel for the petitioner.
Smt. Jayashree, learned counsel for the respondent.
These petitions are admitted for hearing. With the consent of learned counsel for the parties, the same are heard finally.
2. In these petitions, petitioner has assailed the validity of the order dated 21.09.2013 passed by the II Additional Family Court by which applications for impleadment filed by the respondent and for amendment under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) have been allowed.
3. Facts giving rise to filing of the writ petitions briefly stated are that the respondent has filed the petition on 27.01.2012 under Section 13(1) (ia) and (ib) of the Act seeking divorce on the ground of cruelty and desertion against the petitioner herein. On 23.03.2013, the petitioner filed detailed objections to the petition filed by the respondent. Thereafter, on 05.08.2013, respondent filed an application seeking impleadment of an adulterator alleged to have extra marital relationship as well as filed an application seeking amendment of the petition under Section 13 of the Act by which the ground for dissolution of marriage on the ground of adultery was sought to be incorporated. The petitioner filed objections on 22.08.2013. However, the Family Court vide impugned order dated 21.09.2013 has allowed both the applications.
4. Learned counsel for the petitioner submitted that the Family Court has grossly erred in allowing the application under Order I Rule (10) sub-clause (2) read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for short) seeking impleadment as well as application under Order VI Rule 17 read with Section 151 of the Code for amendment. It is further submitted that the Family Court ought to have appreciated that the ground of adultery was not impleaded initially in the petition filed by the respondent under Section 13 of the Act. It is further submitted that in any case, the Family Court ought to have appreciated that the presence of the alleged adulterator was not necessary in the proceedings between the husband and wife.
5. On the other hand, learned counsel for the respondent has supported the order passed by the Family Court and has submitted that the order does not suffer from any infirmity warranting interference of this Court under Article 227 of the Constitution of India.
6. I have considered the submissions made by learned counsel for the parties and have perused the records. From perusal of the averments made in the application for impleadment, it is evident that on an additional ground, namely, adultery, respondent is seeking decree of divorce. The aforesaid impleadment is necessary for fair and complete adjudication of the controversy involved between the parties and is necessary with a view to avoid multiplicity of litigation. Therefore, Family Court has rightly exercised its jurisdiction to deal with the application for amendment, which does not call for any interference in exercising jurisdiction under Article 227 of the Constitution of India as the impugned order neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record. After the impugned order is allowed to stand, petitioner is not going to suffer any prejudice, which results in irretrievable prejudice inasmuch as the petitioner shall have the right to seek amendment of the written statement and lead evidence. Therefore, the impugned order insofar as it pertains to allowing the application under Order VI Rule 17 read with Section 151 of the Code is concerned, the same does not call for any interference.
7. Insofar as the application under Order I, Rule (10) sub-clause (2) read with Section 151 of the Code is concerned, it is evident that the aforesaid application has been allowed by the Family Court on the ground that the proposed respondent is a necessary party to the lis to adjudicate all the questions involved in the petition effectively. The family Court ought to have appreciated that impleading the adulterator as proper and necessary party as provided under Order I, Rule (10) sub-clause (2) read with Section 151 of the Code cannot be invoked in a proceedings under Section 13 of the Act between the husband and wife. The family Court ought to have appreciated that the proposed respondent may be a necessary witness in order to effectively adjudicate the controversy involved between the parties and the respondent would be well within his right to seek production of the aforesaid witness. However, on that ground alone, the proposed respondent cannot be directed to be impleaded to the proceedings. Therefore, the impugned order insofar as it allows the application for impleadment suffers from the error apparent on the face of the record. The same therefore cannot be sustained in the eye of law.
8. In the result, the impugned order is quashed. Writ petitions are partly allowed.
However, taking into account that the proceedings in the family Court between the husband and wife was initiated in the year 2012, the family Court shall make an endeavor to conclude the proceedings as expeditiously as possible. Needless to state that parties to the lis shall extend true co- operation with the family Court for earlier conclusion of the proceedings pending before it and shall not seek any unnecessary adjournments.
With the aforesaid directions, petitions are disposed of.
Sd/- JUDGE Mds/-