IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 OP (FC).No. 3135 of 2011(R) --------------------------- AGAINST THE ORDER DATED 14/07/2011 IN IA 528/2011 IN OP.219/2010 of FAMILY COURT, KASARAGOD .................... PETITIONER/2nd RESPONDENT: ---------------------------------- K. BALAKRISHNAN NAIR, AGED 53, S/O.M.KUNJAMBU NAIR, KUNIKKUNNU HOUSE, P.O.THEKKAL FERRY, (VIA) CHENGALA, KASARAGOD. BY ADV. SMT.R.PADMAKUMARI RESPONDENTS: --------------- 1. E. KRISHNAN NAIR, AGED 57, S/O. UNNI NAIR, BUSINESS, RESIDING AT NANDANAM, BENOOR, PERUMBALA VILLAGE, AND POST, KASARAGOD. 2. PUSHPALATHA, AGED 47 YEARS, W/O.E. KRISHNAN NAIR, NEAR SAW MILL, CHETTUMKUZHI P.O., HIDAYATH NAGAR, KASARAGOD TALUK AND DISTRICT. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 3135 of 2011(R) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE O.P.219/2010 FILED BY THE 1ST RESPONDENT. EXT.P2: TRUE COY OF THE COUNTER FILED BY THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE I.A.527/11 IN O.P.NO.219/10. EXT.P4: TRUE COPY OF THE I.A.528/11 IN O.P.219/10. EXT.P5: TRUE COPY OF THE COUNTER FILED IN I.A.NO.528/11 BY THE 2ND RESPONDENT. EXT.P6: TRUE COY OF THE FIR IN CRIME NO.402/11 OF KASARGOD POLICE STATION. EXT.P7: TRUE COY OF THE PETITION FILED IN M.C.NO.40/2011 IN M.C.40/2011 ON THE FILES OF THE JFMC-I KASARAGOD. EXT.P8: TRUE COPY OF ORDER DATED 28.5.2011 IN C.M.P.NO.4142/2011 IN M.C.40/2011 ON THE FILES OF THE JFMC-I KASARAGOD. EXT.P9: TRUE COPY OF THE PLAINT FILED BY THE 1ST RESPONDENT IN O.S.NO.136/2011. EXT.P10: TRUE COPY OF THE ADDITIONAL COUNTER FILED BY THE 2ND RESPONDENT IN O.P.NO.210/2010. EXT.P11: TRUE COPY OF THE I.A.529/11. EXT.P12: TRUE COPY OF THE I.A.530/11 AND DOCUMENTS PRODUCED ALONG WITH I.A. EXT.P13: TRUE COPY OF THE ORDER DATED 14.7.2011. EXT.P14: TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT ON 28.6.2011 BEFORE THE HOME MINISTER. TKS // TRUE COPY // P.S.TO JUDGE THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ---------------------------------------- O.P.(FC)No.3135 of 2011 ---------------------------------------- Dated this the 29th day of September, 2011 JUDGMENT Thottathil B.Radhakrishnan, J. The first respondent sued his wife, the second respondent, for divorce on the ground of cruelty. She filed objections. During the pendency of proceedings, the husband applied for amendment of the O.P. to incorporate a further ground for divorce. He pleaded that his wife has committed adultery and he has come to know of it. He also applied for impleadment of the alleged adulterer as a co-respondent in the proceedings before the court below. We have seen the affidavit filed in support of the application for impleadment. Reading the impugned order, we find that the learned Judge of the Family Court has adopted a very cautious approach in not making any particular positive statement on the credibility of the allegations sought to be brought in by the amendment. The question as to whether there exists a ground to issue a decree of divorce on the ground of adultery can be answered by the Family Court only after trial. The wisdom that we find in the impugned order is also that the learned Judge has rightly noted that it would be unnecessary for parties to have multiplicity of proceedings in relation to divorce of one matrimonial tie. The learned Judge is also right in saying that when the plea of adultery is brought on record, the mandatory requirement that the alleged adulterer has to be on the array of parties necessitates the O.P.(FC).No.3135/2011 2 requirement to allow the request for impleadment. 2. With the aforesaid, though the learned counsel for the petitioner, who is arrayed as the co-respondent, made very persuasive and exhaustive submissions on the basis of the facts of the case, we are inclined to think that in exercise of authority under Article 227 of the Constitution of India we would not entertain this O.P., but would preserve for the petitioner the right to challenge the order of impleadment and amendment, in any appeal against the final order of the Family Court, if that becomes necessary for him. In the result, having found no error of jurisdiction or illegality warranting interference under Article 227 of the Constitution of India, we dismiss this original petition, in limine. We would, however, request the learned Judge of the Family Court to consider any plea by the petitioner herein for expeditious adjudication of the main matter since according to his learned counsel, he has an independent family with daughters who are to get married. Sd/- THOTTATHIL B. RADHAKRISHNAN Judge Sd/- C.T.RAVIKUMAR Judge TKS