Selvakumar vs Pramila on 15 September, 1995

    Selvakumar vs Pramila on 15/9/1995

ORDER

   Srinivasan, J.

   1. The order granting a decree for divorce has to be set aside on a very
short ground, i.e., the provisions of Section 11 of the Indian Divorce Act have
not been complied with.

   2. Though the petitioner has alleged in para 6 of the petition that he does
not know the name of the person, with whom the re- pondent, his wife, is living
at Mettupalayam, he has not sought the permission of the court to file the
original petition without impleading the adulterer as a co-respondent. The court
below has not applied its mind to that aspect of the matter, but proceeded to
take the original petition on file and consider the evidence adduced by the
petitioner. The wife having remained ex parte, the court below accepted the
evidence of the husband and granted a decree for divorce. The mailer has come up
before us for confirmation.

   3. We cannot confirm the decree, as the provision of Section 11 has not been
complied with. Under Section 11 of the Indian Divorce Act, the petitioner shall
make the alleged adulterer a co-respondent to the petition. The provision is
mandatory. The latter part of the section provides that he may be excused from
doing so, on any of the grounds mentioned therein to be allowed by the court.
Thus, Section 11 contemplales an express permission of the court which is
necessary for proceeding with the original petition without impleading the
adulterer as a co-respondent. The position of law is well settled.

   4. In Susanta Kumar Mitra v. Himangshu Proua Mishra , a Full Bench of the
Calcutta High Court has laid down that the only exceptions when the adulterer
need not be made a party are the three mentioned in Section 11 and none others
and even those exceptions can only be made by the permission of the court and if
allowed by the court. Thus, the section requires application of mind by the
Court as to whether permission has to be granted under Section 11 of the Act to
the petitioner to proceed with O. P. without impleading the adulterer as a co-
respondent. The same view has been taken in Ramish Francis Toppa v. Violet
Francis Toppo , wherein, the Calcutta High Court referred to the earlier
judgment of that Court in Susanta Kumar Mitra's case (supra) and also a judgment
of the Kerala High Court in Idi Cula-jcoob v. Mariyamma .

   5. In as much as the petitioner has failed to apply to the Court for
exemption from the mandatory requirement of Section 11 of the Act, the
proceeding ought not to have been continued by the learned District Judge. The
Court has also not passed any order exempting the petitioner from complying with
the provisions of Section 11 of the Act.

   6. Under those circumstances, the decree for divorce is set aside and the
matter is remitted back to the court below for fresh disposal in accordance with
law.

   7. Order accordingly.