1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3678 OF 2009 Mrs Anjali Ramesh Rege .. Petitioner Vs Mr Ramesh Gajanan Rege and anr .. Respondents Mr. Abhijeet Sarwate with Kokila Karla, Advocate for the petitioner. Mrs Mrunalini Deshmukh i/b Subhash Jadhav, for respondent no. 1. CORAM : D.B.BHOSALE, J. DATE : 09/11/2009 PC: 1. Heard learned counsel for the parties. 2. This petition is directed against the order dated 27.1.2009 passed by the Family Court on an application at Exhibit-105 in P.A. No.850 of 2005, by which the said application filed by the petitioner has been rejected. By this application, the petitioner sought to add respondent no.2 as co-defendant in his counter claim. The main petition, bearing P.A. No.850 of 2005, has been T 2 filed by respondent no.1-husband for divorce on the ground of mental cruelty. The petitioner-wife has filed Written Statement and Counter Claim in which she has made the following prayers:- “(a) The petition filed by the petitioner may be dismissed; (b) The respondent may be permitted to retain/keep Saya bungalow, her present residence, the same being her matrimonial home; (c) The respondent may be granted a lumpsum permanent alimony of Rs. Five crores or monthly installment of more than Rs.1.5 lacs.” 3. The petitioner in her application at Exhibit-105 has stated about the alleged extra marital affair of respondent no.1- husband with respondent no.2. The averments in this regard are pleaded in paragraphs 2(H) to 2(O) of the Additional Written Statement. It is contended that where such affair is pleaded, it is necessary to join such third person as a party to the suit. In the application, the petitioner has prayed for permission to amend her Written Statement/Counter Claim and add respondent no.2 as co-defendant. The Family Court, after having considered overall facts and circumstances of the case, has held that respondent no.2 is not necessary party and it may cause harm to her reputation, to her family life, social life if she 3 is added as co-defendant. 4. Mr.Sarwate, learned counsel for the petitioner, challenged the order of the Family Court mainly on two grounds. He submitted that where the Court has to decide whether spouse of the petitioner had voluntary sexual intercourse with another person, by adding such person as respondent, Court would be in a better position to effectually and completely adjudicate upon controversy. He submitted that in such cases, adulterer, though is not a necessary party, is certainly a proper party and in view thereof the Family Court ought to have allowed the application filed by the petitioner. In support of this contention, he placed reliance upon two Judgments in Arun Kumar Agrawal Vs. Radha Arun and anr, AIR 2003, Karnataka 508 and Sikha Singh Vs Dina Chakrabarti and others, AIR 1983 Calcutta 370. He then placed reliance upon rule 5 of the Hindu Marriage and Divorce Rules, 1955 and submitted that if a husband is living in adultery or has committed adultery with another person, such person is a necessary party in the proceedings as co-respondent. He then invited my attention to Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (for short, “the Act”) and submitted that even for deciding the application for maintenance and right of residence, a person like respondent no.2, would be necessary 4 and proper party to the proceedings. The petitioner-wife in the present case, in view of her husband’s affairs with respondent no.2, is fully justified in living separately and is, therefore, entitled to claim maintenance as contemplated by clause (g) of sub section (2) of section 18. 5. I have perused the judgments relied upon by the petitioner of the Karnataka and Calcutta High Courts. It is pertinent to note that the appeals/revision before the High Courts at Karnataka and Calcutta respectively were arising from the proceedings instituted for divorce on the ground that the opponent-spouse was living in adultery. In view thereof, both the courts took a view that such person, with whom the opponent- spouse is allegedly having extra marital affairs, would be necessary party and the court would be in a better position to effectually and completely adjudicate upon the controversy. In the present case, the petitioner-wife has filed the application at Exhibit 105 for adding respondent no.2 as a party defendant in her counter claim. The counter claim filed by the petitioner is for maintenance and her right of residence in a bungalow where she has been residing presently. The learned counsel for the petitioner could not and did not, apart from the aforesaid judgments of the High Courts, point out as to how and why 5 respondent no.2 is either necessary or proper party to the proceedings. Merely because the application filed by the petitioner is under section 18 under which she can claim maintenance also on the ground that she is justified in living separately, in my opinion, respondent no.2 need not be added as party to the proceedings. It is always open to the wife to prove that her husband is living in adultery and, therefore, justified in living separately by leading/producing evidence in support of her case and for which, in my opinion, a third person such as respondent no.2 is neither necessary nor proper party to the proceedings. 6. Even rule 5 of the Hindu Marriage and Divorce Rules, on which the petitioner placed heavy reliance upon in support of her contention, provides that 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, he shall make such person as co-respondent. The petitioner’s application is for adding respondent no.2 as co-respondent in her counter claim. The counter claim is filed by the petitioner for maintenance and her right to reside in the premises, where she is presently residing and which she claims to be her matrimonial home. This rule, therefore, in my opinion, is of no avail to the 6 petitioner. I find myself in agreement with the findings recorded by the Family Court in the impugned order including the observation that if respondent no.2 is added as a co- defendant, it would cause harm to her reputation and her family, social and private life. In the circumstances, the writ petition fails and dismissed as such. (D.B.Bhosale,J.)