In the following cases the adulterer was not made a party to the case:
Sanjay Khanderao Bodake v. Ashwini Sanjay Bodake
Relevant para 4 and 5
The learned trial Judge rejected the application principally on the ground that at the time of filing H.M.P, the petitioner did not seek permission as required under Rule-5 of Bombay High Court Hindu Marriage and Divorce Rules 1955 (for short ‘Rules’). If the petitioner was not aware of the name of such person at the time of filing of the Petition etc, he should have sought permission to dispense with joinder of such person. The learned trial judge observed that in the present case, neither that person is made party nor such permission was sought. Here the petitioner did not implead him as party at the time of filing of the Petition and also no permission was sought for dispensing with the joinder of adulterer. Therefore he cannot be made a party to the case.
Ayyapan v. Vasanta, A.I.R. 1988 Kerala 314, Relevant para 3 and 4
The question that arises for consideration is as to whether the failure to implead the alleged adulterer is fatal to the petition. It has also to be considered whether he could be impleaded at a later stage. Rule 11(a) envisages that in every petition for divorce on the ground that the respondent is living in adultery or has, after the solemnisation of the marriage, had sexual intercourse with any person, the petitioner shall make such person as co-respondent. This is a mandatory Rule. Rule 11(d) reads:—
“The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the co-respondent in cases covered by sub-rule (a) above 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 being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or has had sexual intercourse.
(iv) for any other reason that the Court may deem fit and sufficient to consider.”
Thus the position admits no doubt that in cases not covered by R. 11(d) it is incumbent upon the petitioner to implead the adulterer as co-respondent, Having not done so when the original petition was filed before the Court and having not filed a petition supported by the affidavit under R. 11(d), the petitioner cannot at a later stage implead the adulterer as co-respondent.
Gajanan s/o Prabhakar Deshpande Versus Smita Gajanan Deshpande: (2011) 5 Mah LJ 936 , Relevant para 6 and 7
Rule 5 of the Bombay High Court Special Marriage Rules, 1954 (hereinafter referred to as “the Rules of 1954”) has not been complied with in the instant case by the appellant-husband inasmuch as the alleged adulterer was not added as co-respondent nor the appellant was excused by the trial Court from doing so and, therefore, the petition was bad for non-joinder of the necessary party. In short, she prayed for dismissal of Appeal with costs.
