Full Judgment Text
2022:DHC:1329-DB
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Decided on: 11 April, 2022
+ MAT.APP.(F.C.) 123/2021
MOHIT MITTAL .....Appellant
Represented by: Appellant in person.
versus
KANIKA JAIN ...... Respondent
Represented by: Mr. Yakesh Anand & Ms.
Deepshikha Sansanwal, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
NEENA BANSAL KRISHNA, J. (ORAL)
1. The present appeal has been filed by Mr. Mohit Mittal (hereinafter
th
referred to as ‘appellant’) , against the order dated 05 December, 2020 of
learned Principal Judge, Family Court, East District, Karkardooma, Delhi
dismissing the appellant’s application under Order VI Rule XVII of Civil
Procedure Code (hereinafter referred to as ‘CPC’) for impleading Sh,
Vijaydeep Siddharth, the alleged adulterer and parents of Ms. Kanika Jain
(hereinafter referred to as ‘respondent’) as the party to the proceedings .
th
2. Facts in brief are that the appellant got married to respondent on 27
nd
April, 2016 at Delhi and got separated on 02 July, 2016. A petition for
annulment of marriage under Section 12 (1) (c) read with Section 13(1) (ia)
of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act, 1955’)
was filed by the appellant essentially on the grounds that the respondent was
MAT.APP.(F.C.) 123/2021 Page 1 of 5
2022:DHC:1329-DB
having pre-marital affair with one of her colleagues which continued after
her marriage and even after the respondent left the matrimonial home. The
respondent’s behaviour reflected that she had planned for a divorce even
before the marriage and had played a fraud.
3. During the trial, the appellant moved an application under Order VI
Rule XVII of CPC, which was orally requested to be treated under Order I
Rule X of CPC. The appellant had sought to implead Mr. Vijaydeep
Siddharth, the colleague of the respondent, along with Mr. Surya Kant Jain
and Mrs. Kamlesh Jain, the parents of the respondent being necessary and
proper party to the petition.
4. The learned Principal Judge, Family Court observed that the main
relief sought is under Section 12 (1) (c) of the Act, 1955. Though in the
alternative, a prayer had been made for divorce on the ground of cruelty
under Section 13(1) (ia) of the Act, 1955 but no specific grounds of adultery
have been pleaded. In the circumstances, the alleged adulterer cannot be
added as a party. Furthermore, in the entire petition, there were no specific
allegations against the parents of the respondent being a party to the alleged
fraud in getting the marriage of the respondent performed with the appellant.
The application was dismissed by observing that neither the adulterer nor the
parents of the respondent, are necessary parties to adjudicate the petition.
5. The appellant filed CM (M) No. 1026/2021 against the Order dated
th
05 December, 2020 but the same was dismissed by the learned Single
th
Judge on 16 November, 2021 by observing that the impugned order passed
by the Family Court was not an interlocutory order and, therefore, it was
amenable to appeal under Section 19 of the Family Courts Act, 1984
(hereinafter referred to as the Act, 1984). Moreover, learned Senior Counsel
MAT.APP.(F.C.) 123/2021 Page 2 of 5
2022:DHC:1329-DB
appearing on behalf of the respondent submitted that the question whether
the impugned order is an interlocutory order or not is to be determined by
the Division Bench of this Court, as the jurisdiction to hear appeals under
Section 19 of the Act, 1984 lies with the Division Bench. Consequently, the
appellant withdrew his CM (M) No. 1026/2021 petition.
6. The present appeal under Section 19 of the Act, 1984 has now been
filed by the appellant against the impugned Order which is essentially under
Order I Rule 10 C.P.C.
7. Submissions heard.
8. The object of Order I Rule 10(2) CPC is to bring on record all persons
in order to determine the dispute completely without any protraction,
inconvenience and also to avoid multiplicity of proceedings. In this context,
the application of the appellant for impleadment has to be considered.
8. The appellant had filed a petition for annulment of marriage under
Section 12(1) (c) of the Act, 1955, subsequently, by way of amendment
th
dated 13 November, 2018, he had taken an alternative plea of divorce on
the ground of cruelty under Section 13(1) (ia) of the Act, 1955. The
appellant has placed reliance on Clause 12 of Gazette Notification No.
th
262/Gaz./OSD (R) dated 06 October, 1980 of High Court Rules and
Orders, Volume-II , which reads as under:
“12. Necessary parties –(a) In every petition for
divorce/judicial separation on the ground that the respondent
has, after the solemnization of the marriage, had voluntary
sexual intercourse with any person other than his or her
spouse, the petitioner shall make the alleged adulterer or
adulteress a co-respondent to the petition. The petitioner may,
however, apply to the Court, on application supported by an
affidavit, for leave to dispense with the joinder of such person
MAT.APP.(F.C.) 123/2021 Page 3 of 5
2022:DHC:1329-DB
as a co-respondent on any of the following grounds:
(i) That the name of such person is unknown to the petitioner
although he/she has made due efforts for discovery;
(ii) That such person is dead;
(iii) That the respondent being the wife is leading a life of a
prostitute and that the petitioner knows of no person with whom
voluntary sexual intercourse has been committed; or
(iv) Any other reason that the Court considers sufficient.
9. The appellant has sought divorce on the ground of cruelty; adultery as
a ground for divorce was never pleaded. The alleged adulterer is, therefore,
neither necessary nor proper party and Clause 12 of Delhi High Court Rules
is not applicable to the facts in hand.
10. The appellant has placed reliance on the decisions of Karnataka High
Court in Arun Kumar Agarwal vs. Radha Arun & Anr. ILR 2004 KAR 808
and Lt. Col. Rajiv Shankar vs. Soumya Nair & Another , W.P. (C)
12336/2014 and the decision of Allahabad High Court in Udai Narain
Bajpai vs. Smt. Kusum Bajpai reported in1974 AIR 1975.
11. In Arun Kumar Agarwal (supra) it was held that in a divorce petition
under Section 13(1)(i) on the ground of having voluntary sexual intercourse
with any person other than the spouse, the presence of the adulterer would
enable effective and complete adjudication to settle all questions involved in
the petition. It was further observed that the adulterer is only a proper and
not a necessary party. Similarly, in Uday Narain Bajpai (supra) and Lt. Col.
Rajiv Shankar (supra), the divorce petition had been filed on the ground of
adultery besides other grounds. These judgments do not help the appellant
MAT.APP.(F.C.) 123/2021 Page 4 of 5
2022:DHC:1329-DB
since the divorce in the present case has not been sought on the ground of
adultery.
12. In the present case the learned Principal Family Judge has observed
that there are no specific allegations of adultery and the divorce is sought on
the ground of cruelty. Therefore, the alleged adulterer is neither necessary
nor a proper party.
13. The appellant has also sought annulment of marriage under Section
12(1) (c) on the ground of fraud having been perpetrated upon him by the
respondent while entering into the marriage. The annulment of marriage is
an issue between the appellant and the respondent; whether the respondent
committed fraud in connivance with her parents is a matter of evidence. As
also noted by learned Principal Judge, Family Court, there are no specific
averments in the petition in regard to the role of the parents of the
respondent in the alleged fraud and hence, have rightly been held as neither
necessary nor proper party to the present appeal.
14. We do not find any merit in the present appeal and the same is
dismissed in the aforesaid terms.
(NEENA BANSAL KRISHNA)
JUDGE
(MUKTA GUPTA)
JUDGE
APRIL 11, 2022
S.Sharma
MAT.APP.(F.C.) 123/2021 Page 5 of 5