Alleged Adulterer Should Be Given Opportunity To Disprove Adultery Claim In Divorce Case: Madras High Court

Post By 24law
February 26, 2025

Pranav B Prem

In a significant ruling, the Madras High Court has held that when divorce is sought on the grounds of adultery, the alleged adulterer should be made a co-respondent if the details are known. The Court further observed that if the details of the alleged adulterer are unknown, the petitioner could be excused from the requirement of impleading the alleged adulterer.

A division bench comprising Justice G.R. Swaminathan and Justice R. Poornima ruled, “We, therefore, hold that if the petitioner 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.”

Natural Justice & Right To Defend Against Allegations

The Court emphasized that in Indian culture, being branded as an adulterer is not a badge of honor and that the alleged adulterer must be given an opportunity to defend themselves against such claims. The Court stated, “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. Administrative law is not the exclusive domain for application of the principles of natural justice. They do permeate the other branches of law too. After all, 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 Court further noted that giving an opportunity to the alleged adulterer would discourage reckless allegations, stating that “If making the alleged adulterer as co-respondent is made mandatory, one would think twice before putting forth baseless allegations.”

Legal Provisions & Court Rules On Adultery

The Court referred to the Rules framed by the Madras High Court under Section 21 of the Hindu Marriage Act, which require that in a petition for divorce on the grounds of adultery, the acts of adultery and the occasions must be specified, along with the name and address of the person with whom such adultery was committed. The Court also noted that as per Section 11 of the Divorce Act, the adulterer or adulteress must be made a co-respondent unless excused by the Court. The Court acknowledged that there may be cases where details of the alleged adulterer are unknown, such as in instances of a "one-night stand." It clarified that insisting on impleading the adulterer as a co-respondent in such cases would lead to unfair results. The Court thus ruled that when the details of the alleged adulterer are unknown, the petitioner could be exempted from making him/her a co-respondent.

Case Background

The Court was hearing an appeal filed by a wife against the order of the Sivagangai Family Court, which had allowed the husband's petition for dissolution of marriage on the ground of adultery while dismissing the wife's plea for restitution of conjugal rights.

The Court noted that the husband, though making allegations of adultery, had not made any serious efforts to secure the address of the alleged adulterer. It observed, “The alleged adulterer, namely, Jagadeesan, was not made as a party. The contents of the petition filed in HMOP No.165 of 2017 by the husband do not satisfy the requirements of Rule 4(a)(vi). The allegations are vague. Even the address of the adulterer had not been mentioned. It is not the case of the respondent herein that the alleged adulterer is not known to him. He has been described as a bus conductor operating on a particular route. 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 Court ruled that the failure to implead the alleged adulterer made the petition defective. Accordingly, it set aside the Family Court’s order and allowed the wife's appeal. “In this view of the matter, the impugned order dated 11.08.2018 allowing H.M.O.P No.165 of 2017 is set aside and C.M.A.(MD)No.434 of 2019 is allowed. No costs.”