D. Thomas vs Tara on 28 November, 1977

    D. Thomas vs Tara on 28/11/1977

JUDGMENT

   Ramarrasada Rao, J.

   1. The husband went to court seeking for a divorce under Section 10 of the
Indian Divorce Act on the ground that the defendant was unfaithful to him from
December 1972 and that she was guilty of adultery. In the pleadings, the
plaintiff as husband has set out in the various paragraphs the illegal conduct
of the defendant and her illicit connections with the various named persons. In
fact, he would allege that he had to leave the residence along with his children
to his uncle's house unable to bear the misconduct of the defendant. He so
separated himself from her on 13-1-1973. He says that the defendant is living
the life of a prostitute and would add that she is living as the mistress of one
Murali. In general, the case of the plaintiff-husband is that the defendant was
leading an adulterous life with men known and unkonwn. He did not, however, make
the adulterers as parties to this suit. The defendant's case was that she led
such a life because of her husband himself and that on many occasions she
refused to succumb to the invitation of the plaintiff to commit such indecent
acts and that this is the reason for the suit.

   2. We are not inclined at this stage to go into the merits of this case
because Mr. A. R. Ramachandran who was appointed as amicus curiae took a
preliminary objection that this suit under Section 10 of the Act is not
maintainable, since the plaintiff has not shown sufficient cause for having
excluded the adulterer as a party to the litigation. He brought to our notice
Section 11 of the Act and contends that the suit is not maintainable. Learned
counsel for the plaintiff, no doubt, is conscious of this position, but his case
is that after 13-1-1973- the defendant was leading the life of a prostitute and
that therefore there was no occasion for him to have made a particular
individual as a co-defendant in the suit. Ordinarily this submission would have
find some force. But the pleadings in the instant case disclosed that the
petitioner knew who the adulterers were. Section 11(1) of the Act says that if a
petition for divorce is presented by a husband on the ground of adultery, the
plaintiff is obliged to make the adulterer as a party to it unless he is
exempted from so doing on any one of the; grounds enumerated in Section 11. The
first ground on which he could seek for such an: excuse is that the defendant
wife is leading the life of a prostitute and that the plaintiff knows no person
with whom the adultery has been committed. This Sub-section (1) of Section 11,
therefore, contemplates that even though there is the allegation that the wife
is leading the life of a prostitute, the husband is not aware of the name of the
person with whom the adultery has been committed. Sub-section (2) of Section 11
says that the adulterer is not at all known to the petitioner plaintiff and in
spite of his efforts he could not discover his name. Thirdly under Sub-section
(8) of Section 11 of the Act, if the adulterer is dead, he need not be made a
party. The second and the third sub-sections of Section 11 do not come into play
in this case. So far as the first sub-section is concerned one limb of it is
satisfied because the allegation is that the wire was leading the life of a
prostitute. The other limb of the sub-section has not been complied with. It
says that he could only seek for an excuse from impleading the adulterer if he
does not know the name of any one person with whom, the adultery has been
committed. We have already observed that in the relevant portion of the
pleadings, the petitioner has given the names of the persons with whom the
defendant is said to have been living in adultery during the first period,
namely, before 18-1-1973 and also those who committed such adultery after that
period. In fact, he would categorically admit that the defendant was leading the
life of a harlot committing adultery with known and unknown persons. Such being
the position, the plaintiff cannot plead at this stage, that he does not know
the names of any person with whom the adultery has been committed. It, in the
circumstances of the case, a presumption arises that the plaintiff did know 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 can not be avoided by a husband
seeking divorce on the ground of adultery. As no such person, though known to
the plaintiff, is made a party to this suit, we accept the preliminary objection
raised by the learned counsel appointed as amicus curiae and dismiss the suit
for dissolution as not maintainable in law.

   3. We record with appreciation the services rendered by the amicus curiae.

   4. Suit dismissed.