IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.37534/2013(GM-FC) BETWEEN:
SRI. SHIVANAND @ SHIVAPPA CHINNAPPA HAVARAGI S/O SRI CHINNAPPA AGED ABOUT 42 YEARS PRESENTLY RESIDING AT C/O YASHASWINI PROVISION STORE BEEMAIAH LAYOUT, DIESEL SHED ROAD K.R.PURAM, BANGALORE-560 036.
(BY SRI. T.A. CHANDRASEKHARA, ADV.) AND:
…PETITIONER SMT. GANGAMMA S HAVARAGI W/O SRI SHIVANAND @ SHIVAPPA AGED ABOUT 31 YEARS NEAR MALPANI HOUSE MILATH NAGAR, TALIKOTI MUDDEBIHAL, BIJAPUR-586 214.
(BY SRI. P. PRASANNA KUMAR, ADV.) … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE COURT OF THE VI ADDL. PRL. JUDGE, FAMILY Court, BANGALORE DATED: 06.07.2013, PASSED ON IA.NO.2, IN M.C.NO.3026/2012 VIDE ANNX-A & ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HERING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 6.7.2013 passed by the VI Addl. Prl. Judge, Family Court, Bangalore on I.A.No.2 in M.C.No.3026/2012.
2. Brief facts of the case:
Petitioner and respondent are the husband and wife and their marriage was solemnized on 12.2.1999 at Ambabhawani Temple, Talikoti, Muddebihal, Bijapur District. The married life of petitioner and respondent was happy for hardly one month. Out of their wedlock, one son Master Ankit was born on 28.5.2002 and one daughter Miss Vani was born on 31.7.2003. The petitioner learnt that the respondent had illicit relationship with one Sri.Bhimappa Sharanappa Bommanahalli, who is the son of sister of her mother and with another person Sri.Basavaraj S Dangi. Even after the birth of the child, respondent continued with her extra marital relationship. When such relationship was continued, he brought to the notice of the elders. The elders held panchayat and as per their advice the matrimonial house of the petitioner was shifted to Vidyaranyapuram, Bangalore with a good hope that the respondent may mend her attitude and behaviour. But to his shock and surprise, the owner of the said house forced to vacate the house and got vacated within a period of one month because of the attitude and behaviour of the respondent. Thus, the petitioner was forced to relocate to Vishveshwaraiah Layout, Bangalore. It is the further case of the petitioner that during July 2017, she started neglecting the petitioner and abused him with utmost filthy language besides manhandling, pulling and pushing started, shouting at petitioner in public place/road/infront of the house. Inspite of several opportunities, the respondent did not mend herself and she was not ready and willing to cooperate with the petitioner. Hence, the petitioner left with no other option filed a petition before the Family Court under Section 13(1)(i)(ia)(ib) of the Hindu Marriage Act, 1955 in M.C.No.3026/2012. In that petition, the petitioner has specifically taken up contention in paragraphs 5 and 7 regarding respondent having illicit relationship with one Sri.Bhimappa Sharanappa Bommanahalli and Sri.Basavaraj S Dangi. Subsequently, he filed an application under Order 1 Rule 10(2) of CPC to implead Sri.Bhimappa Sharanappa Bommanahalli and Sri.Basavaraj S Dangi. The application came to be numbered as I.A.No.2. The Family Court, Bangalore by order dated 6.7.2013 has rejected the said application filed by the petitioner. The order dated 6.7.2013 passed by the Family Court, Bangalore is produced at Annexure-A. Being aggrieved by the same, he has filed this writ petition.
3. The learned counsel for the petitioner submits that during the pendency of the application before the Family Court, Sri.Bhimappa Sharanappa Bommanahalli died and hence, the learned counsel for the petitioner is not pressing the impleading application in respect of the deceased Sri.Bhimappa Sharanappa Bommanahalli. He further contended that this Court in the case of Arun Kumar Agarwal vs. Smt. Radha Arun and another (ILR 2004 KAR 808) had held that the presence of adulterer before the Court is necessary to enable it to effectually and completely adjudicate upon to settle all questions involved in the petition. The learned judge of the Family Court has not considered the said judgment of this Court and has rejected the application filed by the petitioner vide order dated 6.7.2013. Therefore, he seeks for setting aside the said order passed by the Family Court.
4. Heard the learned counsel for the petitioner and perused the records.
5. It is not in dispute that the petitioner and respondent were husband and wife and their marriage was solemnized on 12.2.1999 at Ambabhawani Temple, Talikoti, Muddebihal, Bijapur District and out of their wedlock, one son Master Ankit and one daughter Miss. Vani were born. The petitioner had filed a petition in M.C.No.3026/2012 under Section 13(1)(i)(ia)(ib) of the Hindu Marriage Act, 1955. During the pendency of the said petition, an application came to be filed under Order 1 Rule 10(2) of CPC to implead Sri.Bhimappa Sharanappa Bommanahalli and Sri.Basavaraj S Dangi. In paragraph No.7 of the said petition, the petitioner has taken up specific contention that the respondent had illicit relationship with Sri.Bhimappa Sharanappa Bommanahalli and Sri.Basavaraj S Dangi. The paragraph No.7 of the petition is extracted hereunder:
“7. It is submitted that the Petitioner though relocated the matrimonial house from Bijapur to Bangalore, the Respondent immediately after two months started visiting Bijapur, on every weekends or atleast 2 to 3 visits in a month on one or the other pretext and during such visits to Bijapur, the Respondent had developed intimacy with another person viz., Sri. Basavaraj S Dangi, Wadawadagi, B. Bagewadi, Talikoti, Bijapur District. Inspite of change in matrimonial house the attitude and behavior of Respondent in having illicit relationship did not change. During such visit many a times the Respondent use to extent such visit even to Monday and Tuesday, and sometimes use to leave Bangalore either on Thursday or Friday, thus putting the children in total hardship both in terms of their health and also in terms of their education by not sending them to school either on Thursday or Friday or in alternative Monday-Tuesday(for two days) and sometimes for the whole of the week. Thus the children were forced skip the school as per the wishes of Respondent, which resulted in greater hardship to children in addition to Petitioner.”
6. This Court in the case of Arun Kumar Agarwal vs. Smt. Radha Arun and another (ILR 2004 KAR 808) has held that the presence of adulterer before the Court is necessary to enable it to effectually and completely adjudicate upon to settle all questions involved in the petition. The Family Court has not considered the said judgment of this Court while deciding the application filed by the petitioner for impleading the proposed applicants. Paragraph Nos.7, 8 and 10 of the judgment of this Court in the case of Arun Kumar Agarwal (supra) is relevant and same is extracted hereunder:
“7. But what if the rules do not require the impleading of the alleged adulterer as co- respondent, though named in the petition? In the absence of any rule, we have to fall back upon Rules 3, 5 and 10(2) of Order 1 of the CPC. Rule 3 provides that all persons against whom any right to relief in respect of or arising out of the same act/s or transaction/s is alleged to exist, whether jointly or severally or in the alternative, may be joined as defendants in a suit. Rule 5 makes it clear that it shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against them. Rule 10(2) inter alia provides that the Court may at any stage of the proceedings, order that the name of any party improperly joined as defendant be struck out; or order the addition of any person who ought to have been joined as defendant, or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit.
8. A plaintiff or petitioner is bound to implead all those who are 'necessary parties'. He is also entitled to or at liberty to implead in a suit all parties who are 'proper parties'. Though these terms are not defined in the Code, it is well-settled that persons who ought to have been joined, that is persons in whose absence no effective decree at all can be passed are necessary parties. In other words those whose presence is absolutely necessary for grant of the reliefs claimed in a suit are necessary parties. On the other hand all persons whose presence before the Court is necessary to enable it to effectually and completely adjudicate upon and settle all questions involved in the suit are proper parties. In Anil Kumar Singh v. Shivnath, Mishra alias Gadasa Guru, the Supreme Court stated that the object of Order 1, Rule 10(2) of the CPC is to bring on record all persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence and at the same time without any protraction, inconvenience, and to avoid multiplicity of proceedings. The Supreme Court further held:
"A person may be added as a party defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit".
10. There can be no doubt that in a proceedings where the Court has to decide whether the spouse of the petitioner had voluntary sexual intercourse with another person, by adding such person (alleged adulterer) as a respondent, the Court would be in a better position to effectually and completely adjudicate upon the controversy. Nor can it be said that in a proceeding under Section 13(1)(i) of the Hindu Marriage Act, when the spouse and alleged adulterer are impleaded as respondents, the alleged adulterer is improperly joined as a respondent. Therefore, the alleged adulterer will be a proper party to a proceedings under Section 13(1)(i) of the Hindu Marriage Act. The Family Court and the learned Single Judge merely concentrated on the fact no relief was sought against the second respondent. They therefore considered only whether the adulterer is a necessary party to a petition seeking divorce on the ground of adultery, but completely ignored that the alleged adulterer is a proper party.
7. In view of the decision of this Court in the case of Arun Kumar Agarwal (supra), impleading applicant namely Sri.Basavaraj S Dangi is a necessary party to effectively adjudicate the matter.
8. Hence, the petition is allowed. The order dated 6.7.2013 passed by the IV Addl. Prl. Judge, Family Court, Bangalore on I.A.2 in M.C.No.3026/2012 is set aside. I.A.No.2 is allowed. The petitioner is permitted to implead Sri.Basavaraj S Dangi as party to the petition before the Family Court. Since, impleading applicant namely Sri.Bhimappa Sharanappa Bommanahalli is no more, application in respect of him stands dismissed.
Sd/- JUDGE DM