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

“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,” the court said.

The bench of Justice GR Swaminathan and Justice R Poornima observed that in Indian culture, being branded as an adulterer was not a badge of honor and the alleged adulterer should be given an opportunity to disprove the allegations made against him/her. The court added that if an opportunity was not given, the person would be condemned behind his back.

“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 said.

The court also noted that giving an opportunity to the alleged adulterer would discourage one from making reckless allegations as one would think twice before putting forth baseless allegations.

The court noted that as per the Rules framed by the Madras High Court under Section 21 of the Hindu Marriage Act, in case of adultery, the petition shall specify the acts of adultery and the occasion together 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 of adulteress should be made a co-respondent unless the court is excused by the Court from doing so on any grounds.

The court noted that in some cases like “one-night stand”, the partner may not know the details of the person with whom the adultery was committed. The court added that in such circumstances, insisting on making the adulterer as a co-respondent would lead to unfair results. This prompted the court to clarify that when details of the alleged adulterer are not known, the petitioner could be exempted from making him/her a co-respondent.

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

The court noted that the husband, though had made allegations of adultery had not made any due efforts to secure the address of the alleged adulterer. The court noted that even in the police complaint filed by the husband, he had not specified the details of the adulterer. Thus, the court was of the opinion that the Family Court ought to have held the divorce plea as fundamentally defective and straightaway non-suited to he husband.

Thus, the court set aside the order of the Family Court and allowed the appeal.

Counsel for the Appellant: Mr. P. Aju Tagore

Counsel for the Respondent: Mr. S. Bharathy Kannan

Citation: 2025 LiveLaw (Mad) 73

Case No: C.M.A.(MD)No.434 of 2019