Joseph vs Mary on 21 July, 1999

    Joseph vs Mary on 21/7/1999

JUDGMENT

   AR. Lakshmanan, Atg. C.J.

   1. Petitioner, who is the husband of the respondent Mary, filed the petition
for divorce under Section 10 of the Indian Divorce Act on the ground of
adultery. According to the petitioner, the marriage between him and the
respondent was solemnised on 17.6.1974 in accordance with their customary rites
and that he and the respondent were residing together from the date of marriage
and in that wedlock five children were born to them. It is stated that since his
father was taking treatment in the hospital at Manipal, he stayed in the
hospital to help his father and during that period one Johny Thottupurath aged
25 came to the house of the petitioner almost every night and had adulterous
intercourse with the respondent. The eldest daughter of the petitioner is stated
to be the eye-witness. The said Johny subsequently committed suicide. It is
further averred that on 15.1.1988 the respondent left the matrimonial home
without the knowledge and consent of the petitioner and she was moving from
place to place with different persons. It is alleged that during 1992-93 she was
residing with one Joseph Kizhakkekara, whose whereabouts are not known to anyone
who ought to know it and that the respondent is leading a loose life. It is also
stated that there is no collusion between the parties.

   2. The respondent filed a counter affidavit denying the allegations as
baseless. It is submitted that she does not know any person by name Joseph
Kizhakkekara. The allegation that the respondent is leading a loose life is also
denied. It is averred that she was treated with cruelty by the petitioner and
that the petitioner is having illicit relationship with a number of women. Hence
the respondent prayed for dismissal of the petition.

   3. The Principal District Judge, Thalassery formulated the following points
for consideration in the petition :

     "(1) Whether the respondent committed adultery.

     (2) Whether petitioner has committed any act which disentitled him from
claiming relief.

     (3) Whether the petitioner is entitled to get decree of divorce.

     (4) Relief and cost."

   The petitioner examined himself as P.W. 1 and his eldest daughter Sheena as
P.W. 2. Exts. A1 and A2 were also marked on his side. The respondent examined
herself as R.W. 1. No exhibits were marked. The learned District Judge, on the
basis of the evidence adduced before him, came to the conclusion that the
respondent is guilty of adultery. To come to the said conclusion the learned
District Judge relied on the evidence adduced by P.W. 2, who is none other than
the eldest daughter of the petitioner, who was aged 21 and married at the time
of giving evidence. The learned District Judge also held that there was no
effective cross-examination challenging the evidence of P.W. 2 regarding the
relationship between the respondent and the other persons named in the petition.
Counsel for the respondent pointed out certain contradictions in the evidence of
P.Ws. 1 and 2. The arguments advanced by Counsel for the respondent that P.W. 2
is highly interested in P.W. 2, that she is completely under the control of her
father and that under his influence she is giving false evidence against mother,
were also not accepted by the learned District Judge. The District Judge also
rejected the case of the respondent that the petitioner deserted the respondent.
The District Judge held that there is nothing in evidence to show that the
petitioner committed adultery and it was he who deserted the respondent.
According to the learned District Judge, there is nothing on record to show that
the petition was filed in collusion between the petitioner and the respondent.
Relying on the evidence of the petitioner to the effect that he is unable to
find out the whereabouts of Joseph Kizhakkekara and hence he is not able to make
the adulterer a party, the District Judge held that the adulterer could not be
arrayed as a party respondent in the Original Petition. In the result, the
learned District Judge granted a decree in favour of the petitioner dissolving
the marriage between the petitioner and the respondent subject to confirmation
by this Court as provided in Section 17 of the Indian Divorce Act.

   4. When the matter came up for hearing before us, the Bench felt that the
non-impleadment of the adulterer is vital to the case and is against the
mandatory provision under Section 11 of the Indian Divorce Act. We are of the
view that the procedure adopted by the District Judge does not comply with the
mandate under Section 11 of the Act. According to the petitioner, he was told by
his eldest daughter that her mother had spent some nights with one Johny
Thottupurath, who subsequently committed suicide. In so far as Joseph
Kizhakkekara is concerned, it is averred in paragraph 4 of the petition that in
the end of 1992 and for the year 1993 she (the respondent) was residing at
Velakkannoor with one Joseph Kizhakkekara, who had very recently migrated to
Karnataka and his whereabouts were not known to any one who ought to know his
whereabouts. However, the petitioner has not filed any petition under Section 11
of the Indian Divorce Act. Section 11 reads thus:

     "11. Adulterer to be co-respondent--Upon any such petition by a husband,
the petitioner shall make the alleged adulterer a co-respondent to the said
petition, unless he is excused from so doing on one of the following grounds, to
be allowed by the Court:

     (1) that the respondent is leading the life of a prostitute, and that the
petitioner knows of no person with whom the adultery has been committed;

     (2) that the name of the alleged adulterer is unknown to the petitioner,
although he has made due efforts to discover it; or

     (3) that the alleged adulterer is dead."

   5. Section 12 also provides that Courts should be satisfied of absence of
collusion. The standard of proof required in divorce cases under the Act is that
the Judge should be satisfied beyond any reasonable doubt as to the commission
of the matrimonial offence. This is the clear requirement of Section 14.

   6. In Halsbury's Laws of England meaning of 'adultery' has been given as
follows :

     "For the purpose of relief in the matrimonial jurisdiction, adultery means
consensual sexual intercourse during the subsistence of the marriage between one
spouse and a person of the opposite sex not the other spouse."

   A Full Bench of the Orissa High Court in the decision reported in Madhusmitha
Nayak v. Simadri Nayak, AIR 1997 Ori. 162, held in a similar case that the Judge
of the Family Court did not at all apply his mind to the provisions of Section
10 of the Act and did not consider the case of the parties in the background of
that section. The Full Bench held as follows :

     "A Christian marriage can be dissolved only under the provisions of a
statute of general application to such marriages. Grounds for dissolution of
marriage enumerated in Section 10 cannot be extended. In view of the provisions
of Sections 12, 13, 14 and 47 of the Act, a decree for divorce on consent of the
parties is not permissible. It is only on the proof of misconduct as envisaged
by Section 10 of the Act that a decree for divorce is permissible subject to the
restrictions contained in Sections 16 and 17 of the Act. Further, object of
Section 11 being the prevention of any form of collusive divorce, it is not a
mere formality to dispense with the presence of the co-respondent. In the case
at hand, alleged adulterer has not been impleaded as a co-respondent. Until
leave to dispense with the presence of the co-respondent, the suit cannot
proceed. In the absence of an application under Section 11 for executing the
petitioner-husband from not making the adulterer co-respondent in the petition,
the Court has no jurisdiction to entertain the petition.

     4. Therefore, the matter is remitted back to learned Judge, Family Court to
rehear the case and dispose it of in accordance with law within three months
from the date of appearance of parties."

   In the case on hand no application for leave to dispense with the presence of
the co-respondent was ever filed and orders passed. The section says that unless
leave to dispense with the presence of the co-respondent is granted, the
petition cannot proceed and that the Court has no jurisdiction to entertain the
petition.

   7. A learned Single Judge of the Allahabad High Court (Braund, J.) in the
decision reported in William Percy Bowman v. Harriet Dorothy Bowman, AIR (29)
1942 All. 223, held that Section 11 makes it obligatory on a husband when he
petitions for dissolution of marriage on the ground of adultery to make the
alleged adulterer a co-respondent, unless he is excused from doing so on one of
the three grounds mentioned therein. In the said case a letter was produced by
the husband to the effect that the wife has admitted adultery, but refused to
divulge the name of the adulterer. The learned Judge held that the letter from
the wife to the husband admitting adultery is not enough for purposes of Section
11 and that the husband must show that he had made due efforts to discover the
name of the adulterer. The learned Judge further held that Section 11 makes it
obligatory on the husband, when a petition for dissolution of marriage on the
ground of adultery is filed, to make the alleged adulterer a co-respondent
unless he is excused from doing so on one of the three grounds mentioned
therein. In conclusion the learned Judge observed as follows :

     "In the present case all there is, is a mere letter written by the wife to
the husband in which she refused to divulge the name of the co-respondent. There
is no evidence whatever that the petitioner has made the slightest effort to
discover who the co-respondent is. The matter does not quite end there because
it has been established both by the practice of English Courts and by a long
series of cases that until leave to dispense with the presence of co-respondent
has actually been obtained, the suit cannot proceed. It is not sufficient to
apply for leave at the trial. A formal application has to be made before the
trial and it has to be supported by proper evidence that the conditions of
Section 11 of the Act have been complied with. For these reasons, I cannot treat
the present suit as being in a fit condition to proceed to trial and I cannot,
therefore, settle any issues in it. All I can do at this stage is to adjourn the
settlement of issues for a period of six weeks, in order to enable a proper
application to be made."

   8. We shall now see an analogous provision, viz. Section 13 of the Hindu
Marriage Act, which provides for a petition being presented by either the
husband or the wife for dissolution of marriage by a decree of divorce on the
ground that the other party has, after the solemnisation of the marriage, had
voluntary sexual intercourse with another person other than his or her spouse
and has after the solemnisation of the marriage treated the petitioner with
cruelty, etc. It must be noticed that after the amending Act of 1976, a petition
for divorce can lie at the instance of the husband or the wife if the other
party has after the solemnisation of the marriage, committed even a single a ct
of adultery, and that to bring a case under this section it is not necessary to
show that the respondent is living in adultery.

   9. The High Court of Kerala has framed rules in exercise of the powers
conferred under Sections 14 and 21 of the Hindu Marriage Act, 1955 and Article
227 of the Constitution of India to regulate the proceedings under the Act,
viz., the Hindu Marriage (Kerala) Rules, 1963. Rule 11 of the said rules deals
with necessary parties in a petition for divorce or judicial separation on the
ground that the respondent is living in adultery or has, after the solemnisation
of the marriage, had sexual intercourse with any person, and provides that in
every such petition the petitioner shall make such person a co-respondent. The
petitioner is also given liberty to apply to the Court by an application
supported by an affidavit for leave to dispense with the joinder of the co-
respondent in cases covered by Sub-rule (a) on any of the following grounds :

     "(i) that the name of such person is unknown to the petitioner although he
has made due efforts for discovery;

     (ii) that such person is dead;

     (iii) that the respondent being the wife is leading the life of a
prostitute and the petitioner knows of no person with whom she had committed
adultery or has sexual intercourse;

     (iv) for any other reason that the Court may deem fit and sufficient to
consider."

   Rule 7(4) of the above rules provides that in every petition presented by a
husband for divorce on the ground that his wife is living in adultery with any
person or persons or for judicial separation on the ground that his wife has,
after the solemnisation of the marriage, had sexual intercourse with any person
or persons other than him, the petitioner shall state the name, occupation and
place of residence of such person or persons so far as they can be ascertained.
It is pertinent to note that High Court of Kerala has not framed any rules to
regulate the proceedings under the Indian Divorce Act.

   10. A Division Bench of this Court comprising of A.R. Lakshmanan, J. (as he
then was) and K.V. Sankaranarayanan, J. in the decision reported in Kunhiraman
v. Santha, 1998 (1) KLT 556, held as follows :

     "Rule 7(4) states that in every petition presented by a husband for divorce
on the ground that his wife is living in adultery with any person or persons or
for judicial separation on the ground that his wife has, after the solemnisation
of the marriage, had sexual intercourse with any person or persons other than
him, the petitioner shall state the name, occupation and place of resident of
such person or persons so far as they can be ascertained. Rule 11 of the rules
deals with "necessary parties". Rule 11(a) says that in every petition for
divorce or judicial separation on the ground that the respondent is living in
adultery or had, after the solemnisation of the marriage, had sexual intercourse
with any person, the petitioner shall make such person a co-respondent. This
case is filed by the husband for divorce on the ground that the respondent is
living in adultery with one Kunhiraman and also with others. Therefore, the
appellant shall implead the person or persons who had sexual intercourse with
the respondent as co-respondent in the petition by stating the name, occupation
and place of residence of such person or persons so far as they can be
ascertained. In this case, the appellant though presented his case on the ground
of living in adultery has not impleaded the co-respondent or respondents which
is mandatory. Therefore, the petition filed by the appellant is not in
accordance with the Act and the Rules framed thereunder by the High Court of
Kerala."

   The object of Section 17 of the Act is to guard against any infringement of
public policy and public morality. The said section deals with confirmation by
the High Court of a decree for dissolution passed by the District Judge, which
reads as follows :

     "17. Confirmation of decree for dissolution by District Judge--Every decree
for a dissolution of marriage made by District Judge shall be subject to
confirmation by the High Court.

     Cases for confirmation of a decree for dissolution of marriage shall be
heard (where the number of the Judges of the High Court is three or upwards) by
a Court composed of three such Judges, and in case of difference, the opinion of
the majority shall prevail, or (where the number of the Judges of the High Court
is two) by a Court composed of such two Judges, and in case of difference, the
opinion of the Senior Judge shall prevail.

     The High Court, if it thinks further enquiry or additional evidence to be
necessary, may direct such enquiry to be made, or such evidence to be taken.

     The result of such enquiry and the additional evidence shall be certified
to the High Court by District Judge, and the High Court shall thereupon make an
order confirming the decree for dissolution of marriage, of such other order as
to the Court seems fit:

     Provided that no decree shall be confirmed under this section till after
the expiration of such time, not less than six months from the pronouncing
thereof, as the High Court by general or special order from time-to-time
directs.

     During the progress of the suit in the Court of the District Judge, any
person suspecting that any parties to the suit are or have been acting in
collusion for the purpose of obtaining a divorce, shall be at liberty, in such
manner as the High Court by general or special order from time-to-time directs,
to apply to the High Court to remove the suit under Section 8, and the High
Court shall thereupon, if it thinks fit, remove such suit and try and determine
the same as a Court of original jurisdiction, and the provisions contained in
Section 16 shall apply to every suit so removed; or it may direct the District
Judge to take such steps in respect of the alleged collusion as may be
necessary, to enable him to make a decree in accordance with the justice of the
case."

   11. The procedure under Section 17 does not call for any application by
either party or personal appearance before the High Court. The High Court is
also generally reluctant to interfere with the findings of the District Court
unless such findings are perverse. Review of evidence is made in public
interest. This Court, in our opinion, is entitled to review the entire matter
and to come to an independent finding as to whether the facts proved on record
justifying the grant of a decree for divorce or not. It has been consistently
held by this Court and other High Courts that it is essential in the interest of
justice to notify every application for confirmation of the decree of a District
Judge to the respondent and co-respondent even though they were duly served with
notice of the petition in the Court below, but did not choose to appear. Some
Courts have held a different view regarding service of notice on the respondent
in such circumstances on the ground that confirmation of the decree is mere
continuation of the proceedings commenced before the District Judge and no
notice of confirmation is contemplated by the statute. But this Court always
issues notices to the parties before confirmation or otherwise and before the
case is taken up, intimation is also sent to the parties in regard to the
posting of the case before the Full Bench and the date of hearing. In our
opinion, such a procedure is essential in the interest of justice. In our view,
this Court, in proceedings under Section 17 of the Act, is entitled or rather
obliged to review the whole evidence and come to an independent finding as to
whether the District Judge is justified in granting a decree for divorce or not.
This appears to be the clear intention and policy behind the legislative mandate
contained in Section 17 of the Act. That apart, this Court should also be
satisfied beyond any reasonable doubt as to the commission of any matrimonial
offence, which is the clear requirement of Section 14 of the Act.

   12. We are of the opinion that in the case on hand the quantity and quality
of the evidence on record does not justify the grant of a decree for divorce in
favour of the petitioner. This apart, the mandatory requirement under Section 11
has also been given a go-bye. We, therefore, decline to confirm the decree
granted by the District Judge and remit the matter to the District Court,
Thalassery. The District Judge shall re-hear the case after observing the
formalities under Section 11 of the Act and dispose of the same in accordance
with law as expeditiously as possible.

   The Registry is directed to dispatch the records to the District Court,
Thalassery, forthwith.