R. Amirda Amalraj vs Thamima on 18 August, 1994

    R. Amirda Amalraj vs Thamima on 18/8/1994

JUDGMENT

   Srinivasan, J.

   1. The Original petition is for divorce on the ground of adultery. According
to the petitioner, after the marriage, they lived together as husband and wife
and after one and a half years a son was born on 25.8.1984. The child was born
at Neela Nursing Home at Nanganallur, Saidapet Taluk. After the birth of the
son, the respondent lived together with the petitioner's parents at Ramapuram.
Thereafter, they shifted to Mangalmanagar, Mugalivakkam near Porur, Saidapet
Taluk from 1.10.1985 as desired by the respondent the child was left in the
custody of the parents of the petitioner as both the petitioner and the
respondent were employed and had to go to office i n the morning and return in
the evening. The respondent without the knowledge and consent of the petitioner
left the house and took away with her the male child from the parents house of
the petitioner, in the middle of October, 1985. Thereafter she refused to return
in spite of several attempts made by the petitioner. The petitioner came to know
that the respondent is leading a life of prostitution. The respondent is guilty
of adultery. On 13.2.1988 the petitioner actually saw the respondent at 9.10
p.m. rising on the pillion of a TVS 50, driven by a adult male aged about 30.
The petitioner was then returning in his scooter with his friend M. Veeraghavan
after seeing a movie at Alankar, Mount Road, Madras. On seeing the respondent
going ahead, the petitioner brought his scooter near the TVS 50. On seeing the
petitioner, the respondent and her companion allowed down the vehicle and
stopped the TVS 50. The petitioner stopped his scooter and made an approach with
his friend towards the respondent. But before they could reach the respondent
she and her male companion drifted way in haste towards Guindy Railway Station.
The petitioner went to the house of the mother of the respondent and complained
about the conduct of the respondent. The respondent did not return to the house
of her mother at Nanganallur. It is further stated that the respondent is
leading a life of prostitution and adultery after she left the petitioner in the
middle of October, 1985. Though the petitioner had a glimpse of one of the
adulterors with whom the respondent was riding on the pillion in TVS 50 on
13.2.1988 the name of the adulteror is unknown to the petitioner, although he
has made due efforts to discover, it when the respondent returned by 10.00 p.m.
on 13.2.1988 to her parents, house and when questioned by the petitioner and her
mother, she refused to give the name of the person with whom she was riding on
TVS 50. On the above allegation, the petition for divorce was filed.

   2. A counter was filed by the respondent, in which she has denied the
allegations made by the petitioner. She has said expressly that she was not
leading a life of prostitution and she never committed any act of adultery.
According to her she did not ride with anybody on a TVS 50 on 13.2.1988 as
alleged. She has also stated that the name of the alleged adulteror has not been
mentioned by the petitioner and no evidence to prove the prostitution and
adultery was adduced. The petition has to be dismissed with costs. She has
further stated that unless the petitioner withdrew the false allegations made
against her, she reserves her right to prosecute the petitioner and claim
damage.

   3. The District Court framed four issues as follows:

     1. Whether the registered marriage alleged by the respondent is true?

     2. Whether the respondent wife is guilty of adultery?

     3. Whether the petition is not maintainable for non-joinder of the
adulteror as contended by the respondent?

     4. To what relief is the petitioner entitled?

   The respondent remained ex parte at the time of hearing. The petitioner gave
evidence as P.W.I. In his evidence he has not whispered about having seen the
respondent on 13.2.1988. But he has stated vaguely that he has seen the
respondent riding on a TVS 50 with another male on one occasion. He has further
stated that when he wanted to stop the TVS 50 and enquire, she got down from the
vehicle and went towards the Guindy Railway Station. When he went to her house
that night she did not come to the house. He gave a complaint to her mother. It
is further stated by the petitioner that he heard that the respondent is leading
a life of prostitution. Thus in the evidence he has not stated what he has
stated in the petition. He has not mentioned in the evidence that when he
enquired the respondent, she refused to give the name of the person with whom
she was riding on the pillion of a TVS 50. His evidence is also contrary to the
petition with regard to the allegation in the petition that she came to her
mother's house at 10.00 p.m. On 13.2.1988 but in the evidence he has stated that
she never came to her mother's house. The petitioner has not chosen to examine
his friend Veeraraghavan, who is said to have been riding with him when they saw
the respondent on 13.2.1988. The petitioner has also chosen to give the
registration number of the TVS 50. According to the petitioner the TVS 50 was
left on the road and both the respondent and the other male companion had
drifted away in the crowd near Guindy Railway Station. When that is the state of
evidence, it is hardly, sufficient to prove the case of adultery or
prostitution. The mere fact that a women is seen going with a male other than
her husband will not prove adultery by itself.

   4. Moreover in the present case the requirement of Section 11 of the Indian
Divorce Act, 1869 (hereinafter referred to as 'the Act') are not satisfied.
Under Section 11 of the Act, upon any petition presented 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 effort to discover it;

     3. That the alleged adulterer is dead.

   The section requires an application by the petitioner, husband for permission
to file the petition without impleading the alleged adulterer as co-respondent
and the court considering the ground alleged by the petitioner and ordering the
same. Only if such a procedure is followed, the petition under Section 10 of the
Act by the husband without impleading the alleged adulterer as co-respondent is
maintainable. learned Counsel for the petitioner contends that there is no
necessity for filing a separate petition under Section 11 of the Act and it is
sufficient if an allegation is made in the original petition for divorce. We are
unable to accept this contention. In Bowman v. Bowman A.I.R. 1942 All. 223, it
has been 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 three
grounds mentioned therein. It is said, "the section excuses him from doing this
when his wife is leading the life of a prostitute and also when the alleged
adulterer is dead. The third case in which he can be excused is when "the name
of the alleged adulterer is unknown to the petitioner, although he has made due
efforts to discover it". When the legislature enacted that the co-respondent
must be made party to divorce proceedings at the instance of the husband it did
so for a very good reason, in order to prevent any form of collusive divorce. It
is, therefore, not a mere formality to dispense with the presence of the co-
respondent. But the legislature has also recognised that in certain specific
cases it may be impossible to know who he is. I entirely agree, with respect,
with what fell from the learned Judge, of the Calcutta High Court in precisely
similar circumstances in Charles Walter George Cox v. Emily Florence Cos, I.L.R.
45 Cal. 525, when he said:

     ...It seems to me to be a matter of grave public importance that a person
should not be allowed to proceed in a court for the dissolution of his marriage
without having observed all the safeguards imposed by the law to prevent the
chance of connivance or collusion....

   The court has also referred to the practice in English courts and held that
until leave to dispense with the presence of the co-respondent has actually been
obtained the suit cannot proceed and it is not sufficient to apply for leave at
the trial.

   5. In Susmata Kumar Mitra v. Smt. Himangshu Prova Mitra , a Full Bench of the
Calcutta High Court held that," Section 11 of the Indian Divorce Act insists
that the petitioner shall make the alleged adulterer a co-respondent to the said
petition unless of course he is excused from so doing on one of the three
grounds mentioned therein". It is held that where the petitioner has made any
application for permission of the court nor is there anything on the record that
the court allowed the petitioner not to include the adulterer as a corespondent
on any of the grounds recognised by Section 11 of the Act, the petition is not
maintainable. This view has been taken by this Court in several cases. learned
Counsel for the petitioner invites our attention to D. Thomas v. Tara , in which
a Full Bench had to consider a similar

   question. On the facts of the case, the Full Bench held that the requirement
of Section 11 of the Act was not satisfied and the petition was held not
maintainable. But learned Counsel wants to point out that the Full Bench did not
hold that a separate application was to be filed. According to him, the Full
Bench considered whether the allegations made in the original petition were
sufficient to warrant the application of Section 11 of the Act. We are unable to
a accept this contention. Following passage in the judgment of the Full Bench
places the matter beyond doubt.

     If in the circumstances of the case, a presumption arises that the
plaintiff did now the names of such persons, then in the absence of an order
excusing him from impleading the said persons as parties, he cannot successfully
prosecute the original petition for divorce under Section 10 of the Act. In
fact, the prescription in Section 11 is a mandate which cannot be avoided by
husband seeking divorce on the ground of adultery.

   6. In this case, the petitioner had not obtained the permission of the
District Court to file the original petition without impleading the adulterer.
He rested content by making a vague allegation in the petition that the
respondent is leading a life of prostitute. No doubt he alleged in the petition
that the respondent refused to give the name of the person with whom she
travelled in a TVS 50 on a particular date. As pointed out already, he has not
spoken to it in the evidence. Hence the allegation in the petition is worthless
and it cannot be treated as evidence.

   7. Even when the respondent took an objection in the counter-statement that
the petition was not maintainable, the learned District Judge did not choose to
decide the issue as a preliminary issue. On the other hand he framed four
issues, one of which related to the maintainability of the petition for non
joinder of the adulterer. The learned Judge ought to have cal led upon the
petitioner to file an application under Section 11 of the Act and considered the
same before proceeding with the main petition. The procedure adopted by the
learned District Judge in framing the issue as to maintainability as one among
the other issues is erroneous.

   8. Inspite of framing such issues the learned Judge has not chosen to give
findings on the issues separately. In fact he has not considered the issue as to
maintainability at all. He has proceeded to make an order stating that the
evidence of P.W.1 remains unchallenged and the petitioner is entitled to a
decree for divorce. The learned Judge has not adverted to the fact whether the
evidence of P. W.1 makes out a case of adultery or a case of prostitution as
alleged in the petition.

   9. We have already referred to the evidence of P.W.1. It does not in any
sense of the term make out a case that the respondent is guilty of adultery or
prostitution. In the circumstances of the case, we have no hesitation to hold
that the petitioner has not proved his case of adultery and desertion. Hence the
petition is dismissed. The decree for divorce passed by the learned District
Judge is vacated.