HC to review rule on making adulterer party to divorce case

New Delhi: Delhi High Court has put under scrutiny its own rule framed in 1980 governing the conduct of divorce petition hearings across the city.
The court found that the rule making it mandatory for a spouse seeking divorce to include the adulterer as a party to the case is "prima facie" contrary to the Supreme Court's landmark ruling on the right to privacy.
Issuing notice to the registrar general, a bench of justices Rajiv Shakdher and Amit Bansal in a recent order stated that "since the 1980 Rules are in place, it may have to be revisited by the concerned rules committee.For such an exercise to take place, we are inclined to array the registrar general of this court as a party to the present proceedings."
The bench was dealing with a plea seeking clarification of its verdict delivered earlier this year where it held that an adulterer cannot be arrayed as a party to a divorce action. It had opined that adultery could also be proved by placing documentary and oral evidence on record, rather than making the third person a party.
In a fresh application, one of the parties highlighted the presence of Rule 12 of the 1980 Rules that required that an adulterer would have to be arrayed as a party to the divorce petition as he/she is taken to be a necessary party.
Noting the anomaly between the presence of the rule and its earlier verdict, the bench pointed out that the rule as framed, "perhaps, takes away the discretion of the court as to who should be arrayed as a party to the proceedings."
"The alleged adulterer is, to our minds, not a necessary party as a decree can be passed in his/her absence. Likewise, the adulterer is not a proper party since the issue concerning adultery can be adjudicated without making the adulterer a party to the cause. Proof of adultery need not be conflated with who should be arrayed a party to a divorce action," HC had noted in its verdict in July.
The court was dealing with a plea filed by the wife challenging a family court's order to continue hearing her husband's divorce petition where grounds of cruelty, adultery and desertion were raised.
She contended that the alleged adulterer was not included in the proceedings, but the court dismissed the objection noting that "divorce action is a lis (litigation) centred around the couple who have entered into matrimony. A third party [who does not claim the status of a spouse] has no locus to intervene or seek impleadment in such a cause."