Delhi High Court Clarifies Non-Joinder of Alleged Adulterer in Divorce Cases: ‘Third Party Not Essential’

The Delhi High Court has upheld the Family Court’s decision to dismiss an application by the appellant/wife seeking to reject her husband’s divorce petition under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). The court emphasized that the grounds for divorce, including cruelty, remain viable despite claims of desertion and adultery not meeting preliminary requirements.

The appellant/wife challenged the Family Court’s judgment dated June 3, 2024, arguing that the divorce action filed by her husband lacked merit on the grounds of desertion, adultery, and cruelty. She contended that the prerequisites of Section 13(1)(ib) of the Hindu Marriage Act, 1955 (HMA), regarding desertion, were not met, as she had cohabited with her husband until July 2022, whereas the petition was filed in May 2023. Additionally, she claimed contradictions in the husband’s allegations of adultery and highlighted the non-joinder of the alleged adulterer as a party to the proceedings.

The court noted the appellant/wife’s argument that the husband’s claim of desertion since November 2021 did not satisfy the two-year requirement preceding the petition filing. However, it emphasized that the divorce petition could not be dismissed solely on this basis, as allegations of cruelty still needed to be examined.

Addressing the issue of not including the alleged adulterer as a party, the court referred to the Family Court’s stance that the divorce petition should not be rejected because a part of the cause of action was not viable in law. The bench cited previous rulings, including Manjul Joshi v. Bhavna Khurana, to support the view that a third party in an adultery claim does not need to be impleaded for the petition to proceed.

The High Court relied on the principle established in Geetha v. Nanjundaswamy (2023 SCC OnLine SC 1407) that a plaint cannot be rejected in part under Order VII Rule 11 of the CPC. It highlighted that the divorce petition contained viable allegations of cruelty, and thus, could not be summarily dismissed. The court reiterated that the presence or absence of a third party (alleged adulterer) was immaterial to the adjudication of adultery within the context of a divorce proceeding.

The bench clarified, “A necessary party is one in whose absence no effective decree can be passed, whereas a proper party enables complete and final adjudication of issues involved in a given lis.” It further stated, “The alleged adulterer is not a necessary party as a decree can be passed in his/her absence.”

The Delhi High Court’s decision reinforces the judiciary’s commitment to ensuring comprehensive adjudication of matrimonial disputes, particularly in divorce cases involving multiple allegations. By dismissing the appeal, the court affirmed that allegations of cruelty must be addressed in their entirety, regardless of the viability of other claims. This judgment underscores the principle that a plaint must be rejected as a whole or not at all, ensuring thorough examination of all grounds presented in divorce actions.

Date of Decision: July 16, 2024
SV v. GB