Adulterer must be made party in divorce cases if adultery is cited as reason for separation: HC

Madurai: In cases where divorce is sought on the ground of adultery, the alleged adulterer should be made a party to the case as a co-respondent if the details of the adulterer is known, Madras high court has ruled. Only if the details of the alleged adulterer are not known, can there be an exception from making the alleged adulterer as a party, that too after getting leave from the concerned court, it added.
"It is the most appropriate thing to do. Some judges have taken the view that it will amount to invading the privacy of the third party. We do not think so. Accepting the case of the petitioner suing for divorce on the ground of adultery would result in casting stigma and aspersion on the character of the person with whom the respondent is said to have had an adulterous relationship," observed a division bench of Justice G R Swaminathan and Justice R Poornima on Friday.
"Yet another reason for taking the above view is that it would discourage one from making reckless allegations. If making the alleged adulterer as co-respondent is made mandatory, one would think twice before putting forth baseless allegations," the judges said.
The court was hearing an appeal preferred by a woman challenging the order of the Sivaganga family court granting divorce to her husband, who sought dissolution on the ground of adultery.
"We can conceive of cases and situations wherein one of the spouses failed to keep the vows of marital fidelity. It could be a solitary lapse. He or she could have gone for what is called in current parlance as 'one night stand'. This could have been subsequently discovered by the other spouse. A person committing a mistake often leaves a trail inadvertently. Sometimes there could even be a confession due to pangs of conscience."
If the other party is unforgiving, he or she may choose to snap the marital tie on this ground.
Noting that the Latin maxim ‘Lex non cogit ad impossibilia' (Law does not compel the impossible) can be invoked in cases where the applicant will not have knowledge or details of the person with whom the adultery was committed, the judges said: "If the petitioner (seeking divorce on grounds of adultery by spouse) is aware of the details of the alleged adulterer, he or she must be made a co-respondent. 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 judges the allowed the appeal preferred by the wife and set aside the Sivaganga family court order which granted divorce on the petition filed by the husband.