Vijay Bishnoi, J
This writ petition has been filed by the petitioner being aggrieved with the order dated 16.02.2022 passed by the Family Court No.2, Udaipur
(hereinafter to be referred as ‘the trial court’) in Case No.13/2020 (CIS No.603/2018), whereby the application filed by the petitioner under
Order I Rule 10 read with Section 151 CPC has been dismissed.
The respondent, who happened to be the wife of the petitioner, (hereinafter to be referred as ‘the respondent-wife’) filed a divorce petition
before the trial court seeking divorce from the petitioner on the ground of desertion.
The petitioner, in his reply to the divorce petition, has levelled allegation against the respondent-wife that she is living in adultery with one person and
on the basis of it he has filed an application under Order I Rule 10 read with Section 151 CPC with a prayer to implead that person with whom the
respondent-wife is allegedly having adultery relation.
The trial court, after hearing the counsel for the parties, has dismissed the said application vide impugned order dated 16.02.2022 while holding that as
the divorce petition filed by the respondent-wife on the ground of desertion, the person to whom the petitioner requested to implead as party
respondent is not necessary party.
Learned counsel for the petitioner has argued that as per the provision of Rule 801G of Hindu Marriage and Divorce Rules, 1956 (hereinafter to be
referred as ‘the Rules of 1956’) of Chapter XXXII-A of Rules of the High Court of Judicature for Rajasthan, 1952, the person who is having
alleged adultery relation with the respondent-wife, is a necessary party in the divorce petition filed by the respondent-wife. It is, therefore, argued that
the trial court has grossly erred in dismissing the application filed by the petitioner under Order I Rule 10 read with Section 151 CPC.
Learned counsel appearing on behalf of the respondent-wife has opposed the writ petition and argued that there is no illegality in the impugned order
passed by the trial court.
Heard learned counsel for the parties.
Rule 801G of the Rules of 1956 reads as under :-
“801G. Necessary parties :- (a) In every petition for divorce or judicial separation on the ground that the Respondent is living in adultery or has
committed adultery with any person the petitioner shall make such person a co-respondent. The petitioner may, however, apply to the Court by an
application supported by an affidavit for leave to dispense with the joinder of such person as a co-respondent 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 a life of a prostitute and that the petitioner knows of no person with whom adultery has been
committed ;
(iv) for any other sufficient reason the Court may deem fit to consider.
(b) In every petition under section 13 (2) (i) of the Act the petitioner shall make “the other wife†mentioned in that section a co-respondent.
(c) In every petition under section 11 of the Act on the ground that the condition in section 5 (1) is contravened, the petitioner shall make the spouse
alleged to be living at the time of the marriage a co-respondent.â€
From bare reading of the above Rule, it is clear that in a petition for divorce filed on the ground of adulteration, the person, with whom either of the
parties is having adultery relation, is required to be made as party respondent.
However, in the present case, the respondent-wife filed divorce petition on the ground of desertion and not on the ground of adultery.
In view of the above, this Court is of the opinion that the trial court has not committed any illegality in passing the impugned order.
Hence, there is no force in this writ petition and the same is hereby dismissed.
Stay petition also sands dismissed.
