“Some Judges have taken the view that it will amount to invading the privacy of the third party. We do not think so,” the Court said.
The Madras High Court recently ruled that in divorce cases involving adultery allegations, the individual accused of having an extramarital affair (the alleged adulterer) must also be made a party to the proceedings.
A Bench comprising Justices GR Swaminathan and R Poornima clarified that the only exception to this requirement arises when the alleged adulterer’s identity is unknown or they cannot be located.
In all other instances, the Court held that failing to include the alleged adulterer as a party would render the divorce petition non-maintainable.
“If the petitioner (person who seeks divorce on the ground of adultery by their spouse) is aware of the details of the alleged adulterer, he or she must be made a co-respondent. Failure to implead would be fatal and the petitioner will have to be non-suited summarily at the very threshold. If according to the petitioner, the name of the adulterer or adulteress is not known or if the alleged adulterer or adulteress is dead, the petitioner can be excused from the requirement of impleading the alleged adulterer. The petitioner must of course get leave from the court for being so excused,” the Court said.
It is only just and fair that a person is heard before he is condemned. In our culture, to be branded an adulterer is not a badge of honour.
Madras High Court
The Court stated that it disagreed with the notion that including an alleged adulterer as a party in divorce proceedings between a couple would infringe upon the privacy of the third party.
“Some judges have expressed the view that this would amount to invading the third party’s privacy. We disagree,” the Bench stated.
The Court emphasized that it is more crucial to provide the alleged adulterer an opportunity to either deny or confirm the allegation of an adulterous relationship.
“Accepting the case of the petitioner suing for divorce on the ground of adultery would result in casting stigma and aspersion on the character of the person with whom the respondent is said to have had an adulterous relationship … Opportunity ought to be given to the said individual to disprove the allegation made by the petitioner. Otherwise, he would stand condemned behind his back … it is only just and fair that a person is heard before he is condemned. Certainly, in our culture, to be branded an adulterer is not a badge of honour,” the January 28 ruling said.
The Court further observed that requiring the alleged adulterer to be included as a co-respondent in divorce proceedings could help deter baseless allegations.
“If making the alleged adulterer as co-respondent is made mandatory, one would think twice before putting forth baseless allegations,” the Court said.
The Bench observed that while the rules framed by the Court under the Hindu Marriage Act, 1955, do not mandate including an alleged third-party adulterer in divorce proceedings, the Divorce Act of 1869 explicitly requires such individuals to be named as respondents in divorce petitions.
The ruling was delivered in a case where a man sought divorce from his wife, alleging that she was involved in an extramarital affair. The wife denied the accusation and filed a plea for the restoration of marital relations.
A trial court dismissed her plea and granted the husband’s divorce petition. Dissatisfied with the decision, she moved the High Court for relief.
The High Court observed that the man had made only vague allegations of adultery against his wife and should have ideally included the alleged adulterer as a party to his divorce petition. Since he failed to do so, the Court ruled that his divorce plea was not maintainable. Consequently, the High Court overturned the trial court’s decision, which had granted him a divorce.
“It is not the case of the respondent herein that the alleged adulterer is not known to him … If only the respondent herein had made due efforts, he could have definitely secured the address particulars. In these circumstances, the Court below ought to have held that the divorce petition was fundamentally defective and straightaway non-suited the husband-petitioner,“ the High Court opined.