Adulterer - a party to proceedings in divorce cases

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.

 

 

Specific Relief Act is a procedural statute

Specific Relief Act, 1963 is an enactment in procedural law is purported to be drawn from the decisions in Adhunik Steels Ltd. v. Orissa Manganese & Minerals Pvt. Ltd (2007), Radheshyam Kamila v. Kiran Bala (1971) and Moulvi Ali Hossain Mian v. Rajkumar Halda (1943).

 

 

Amendment to procedural law (specific relief act) would not apply retrospectively. (Specific Relief Act, 1963 is an enactment in procedural law is purported to be drawn from the decisions in Adhunik Steels Ltd. v. Orissa Manganese & Minerals Pvt. Ltd (2007), Radheshyam Kamila v. Kiran Bala (1971) and Moulvi Ali Hossain Mian v. Rajkumar Halda (1943).)

 

Commissioner of Income Tax v. Vatika Township Private Limited (2014) – for the proposition that distinction  that amendment confer benefits without imposing corresponding duties, and therefore attract the rule against retrospective operation are distinct.

Third parties permitted to challenge the award

Chennai Container Terminal Pvt. Ltd. v. Union of India, 2007 SCC OnLine Mad 253 : (2007) 3 Arb LR 218 : (2007) 3 Mad LJ 1 at page 228

16. To sum up the findings, though Government of India was not a signatory to the arbitration agreement, it was a party non-signatory. Therefore, not only a party to the arbitration agreement but a party non-signatory also can challenge the impugned award passed by the learned arbitrator. Further, the scheme of the Code of Civil Procedure applies to the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. Therefore, the proposition of law that an aggrieved party can challenge the judgment will have to be applied to the facts and circumstances of this case. The contextual facts and circumstances warrant expansion of the definition found under Section 2(1)(h) of the Arbitration and Conciliation Act, 1996 to include the Government of India who is a party non-signatory for the purpose of challenging the award under Section 34 of the said Act. In view of the above, sustaining the order passed by this court granting leave to Union of India to prefer the original petition challenging the award passed by the learned arbitrators, Application No. 169 of 2007 filed by Chennai Container Terminal Private Limited seeking to recall and set aside the order dated 09.01.2007 stands dismissed.

 

File notings are not decisions

Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147 : (2014) 3 SCC (L&S) 405 : 2013 SCC OnLine SC 1031 at page 166

37. In Jasbir Singh Chhabra v. State of Punjab [(2010) 4 SCC 192] , this Court held: (SCC p. 209, para 35)

“35. … However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is influenced by extraneous considerations.”

 

Abandon plea - new ground

The point not urged before the High Court cannot be argued before this Hon'ble Court (2008) 2 SCC 95 Md Akram Ansari v. Chief Election Officer

 

Whether immovable property falls in the ambit of section 406 ipc

AIR 1962 SC 1821 (RK DALMIA)

2019 SCCONLINE KER 1789 (DAMODAR PANIKKAR)

Section 150 of Income Tax Act, 1961

In ITO v. M/s Neetee Clothing, 2015 SCC OnLine ITAT 11513, ITAT Delhi held that “Further, we concur with the opinion of the ld CIT(A) that the words “any proceeding under this Act by way of appeal reference or revision” cannot be read as to give effect to an order made in any case and for any period and of any person. These words should be so construed as referable to an order made for a particular year or years of that particular assessee and not of others.”

 

 

In DCIT v. Sai Baba Sales, 2016 SCC OnLine ITAT 13642, the ITAT Pune has allowed proceedings ordered by CIT(A) under S.148 r/w S.150 of the Income Tax Act, 1961 to identify the correct assessee in a case where it could not be ascertained from the material on record whether income is to be taxed in the hands of the director or the company

 

Landmark Supreme Court is CIT v. Greenworld Corpn., (2009) 7 SCC 69