The Karnataka High Court has held that a Family Court was wrong to call a husband’s divorce petition not maintainable just because the alleged adulterer wasn’t made a party. The Court still upheld the dismissal of the petition, finding that the husband had failed to prove adultery or cruelty.
A Bench of Justice M.I. Arun and Justice Usharani dismissed the husband’s appeal against a judgment of the I Additional Principal Family Court, Gadag.
Background
The couple married on February 17, 2012 and lived at the husband’s house in Hombal village, Gadag Taluk. The husband alleged that, a few months into the marriage, the wife became unwilling to live in the joint family and criticised him for not having a stable income.
He alleged that on May 22, 2018 the wife was caught with another man at a house. He said the man snatched her mangalsutra and escaped on a motorcycle, and that the wife later admitted to Gadag Rural Police that she was in a relationship with him and had conceived. FIR No. 181/2018 was registered against that man and the owner of the house under Sections 392, 497, 114 and 34 of the IPC.
The wife denied the allegations before the Family Court. She said the husband and his family had subjected her to cruelty, had demanded more gold and cash at her ‘Simanta’, and had pressed her to give up a house allotted to her under the ‘Women Scheme’.
The Family Court dismissed the petition on June 21, 2019. It held that the petition was not maintainable because the alleged adulterer hadn’t been made a party, and that the husband had failed to prove his allegations.
Arguments
Advocates C.S. Shettar and Kavya C appeared for the husband. They contended that after the incident the wife was produced before the police and admitted her guilt. She was then sent to a rehabilitation centre for women at Betageri for three days, where fifteen village elders met and spoke to her.
The wife didn’t appear in the appeal, although notice had been served on her.
Alleged Adulterer Is a Proper Party
The High Court referred to the Division Bench ruling in Arunkumar Agarwal v. Radha Arun. That ruling held that an adulterer is a proper party to proceedings under Section 13(1)(i) of the Hindu Marriage Act but not a necessary one. It also noted that this principle was reiterated in N. Vijaykumar v. Latha @ Sangeetha.
The Bench held that “when issue is with regard to adulterous relationship alleged by one party against another, the Trial Court erred in holding that the petition is not maintainable on account of non-arraignment of adulterer as a party to the proceedings.”
Adultery Allegation Not Proved
On the merits, the Court found inconsistencies in the husband’s case. His complaint and his own evidence showed that he hadn’t witnessed the incident and had learnt of it from his aunt and her son. In cross-examination, however, he gave a different account. He deposed that he had lodged the complaint immediately, while his aunt said she had lodged it. In fact, the husband lodged it six days later. The two eyewitnesses were his own relatives.
The Court observed: “If at all respondent was caught red-handedly, non-filing of complaint on the very same day makes the occurrence of the alleged incident improbable.”
The wife admitted spending three days at the rehabilitation centre but denied admitting guilt. The Court held that this showed “a natural wear and tear in their marital life but it does not prove that respondent is in an adulterous relationship.”
The husband had given no details of the criminal case. The Court checked the e-Courts case status and found that the criminal case, C.C. No. 737/2018, had ended in the acquittal of both accused.
On the claim that the child was born of the alleged relationship, the wife said in cross-examination that the child was the husband’s and refused a DNA test. The Court said the Family Court had rightly relied on V. Anandappa v. V. Shivaraju. It noted the presumption of legitimacy for a child born during a valid marriage, and held that it was for the husband to prove non-access to displace the presumption under Section 112 of the Indian Evidence Act.
The Court also noted that the wife had produced no evidence of the alleged demands for gold, money and the house.
Cruelty Not Established
On cruelty, the Court found that the husband had produced no supporting evidence. Although the wife was cross-examined at length, “nothing much was elicited in support of the case of the appellant.”
Outcome
The High Court dismissed the appeal and confirmed the Family Court’s judgment of June 21, 2019. It made no order as to costs and directed the Registry to send the trial court records back.
Case No.: MFA No. 102914 of 2022 (FC)
Bench: Justice M.I. Arun and Justice Usharani
Date: 06.11.2026
