Sanjay David Singh vs Smt. Reena Singh

Rakesh Sharma, J.—This first appeal from order arises out of an order dated 17.8.2009 passed by the Assistant Principal Judge, Family Court, Kanpur City, directing the Plaintiff to implead one Ms. Nisha Das as a party to the proceedings pending before it.

The Appellant, a Christian married man, had filed a Suit u/s 32 of the Divorce Act, 1869 before the Court of Principal Judge, Family Court, Kanpur City, which was numbered as Matrimonial Case No. 969 of 2003 Sanjay David Singh v. Smt. Reena Singh. Through this Suit, the Appellant had sought restitution of conjugal rights alleging that his wife Smt. Reena Singh was avoiding to live with him in the matrimonial home. Written statements were filed and a counterclaim has been lodged by the wife Smt. Reena Singh. It has been alleged in the counter-claim that the Appellant Sanjay David Singh had married with one Ms. Nisha Das and he is living with her. It has further been alleged that one girl child has born in July, 2008 out of this illicit relation. The learned Family Court taking into account versions of both the parties had ordered the Appellant-Plaintiff to implead Ms. Nisha Das as a party to the proceedings. The learned Family Court, in this regard, has also taken into account Section 11 of the Divorce Act, 1869, which is applicable to the Christian couples.

Learned Counsel for the Appellant has assailed this order of learned Family Court on various grounds. According to him, such an order cannot be passed by the Family Court directing the Plaintiff-Appellant to implead alleged adulterer or adulteress. It was open for the wife Smt. Reena Singh to have impleaded Ms. Nisha Das as a party. The order impugned is against the provisions of Order VIII, Rule 6(a)(4) of the Code of Civil Procedure. Due to continuance of this order, the Appellant-Plaintiff would immensely suffer and he has raised doubt of contemplated litigations to be brought against the husband-Appellant. It has been further submitted by the learned Counsel that the Appellant cannot be forced to impaled a third party Ms. Nisha Das. The impugned order dated 17.8.2009 deserves to be set aside.

I have heard learned Counsel for the Appellant and perused the order impugned dated 17.8.2009 and also gone through the pleadings put-forth by the contesting parties before the learned Family Court.

It has been specifically pleaded in the additional written statement that the Appellant had married with one Ms. Nisha Das. A girl child has born in July, 2008 out of such illicit relations. The wife had further pleaded that in these circumstances where a husband remarried and a girl child has also born out of alleged wed lock, there could be no possibility of restitution of conjugal rights. The husband and the wife could not live together. However, this issue is still open before the Court to be adjudicated upon, after taking into account the pleadings of the parties.

As far as impleadment of Ms. Nisha Das as a party to the proceedings is concerned, there is nothing wrong in the order passed by the learned Family Court. The order impugned has been passed to follow the principles of natural justice and in accordance with the law laid down by the Hon''ble Apex Court in the cases of Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, , wherein it has been held by the Hon''ble Apex Court that the High Court ought not to hear and dispose of a writ petition under Article 226 without the persons who would be vitally affected by its judgment being before it as Respondents or at least some of them being before it as Respondents in a representative capacity..." In another case in Ramrao and Others Vs. All India Backward Class Bank Employees Welfare Association and Others, the Hon''ble Apex Court has reiterated its earlier view and observed in paragraph 27 of the judgment that "... An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be bad in law...."

Thus, in view of the decisions of the Hon''ble Apex Court cited above, it is the duty of the Court to ask a litigant coming before it to implead all the affected persons as parties to the case, whose rights are going to be affected by a judgment or order of the Court. Moreover, the order impugned has been passed, taking into account Section 11 of the Divorce Act, 1869. The version of Ms. Nisha Das will be necessary which may be considered by the learned Family Court to arrive at a just and proper conclusion.

In view of the discussions made above, this Court does not find any illegality or infirmity in the order impugned. It appears to be an innocuous and miscellaneous order passed by the learned Family Court during the course of the proceedings of a matrimonial matter. Accordingly, the Appeal is devoid of merits and is dismissed.

No order as to costs.