R. George Thomes vs S. Lilly Samuel

Srinivasan, J.—It is very unfortunate that the learned District Judge has not even chosen to go through either the pleadings or the evidence

on record; but granted divorce just because the respondent remained ex-parte.

Even in the petition filed by the husband, there is no averment that the wife is guilty of adultery. Relevant averments are in paragraphs 6 and 7 of

the petition, which read as follows:- ""But this plaintiff/petitioner came to know that the respondent/defendant have indulged into immoral conducts

with other men illegally except the plaintiff/petitioner in his absence. This Offence of adultery of the defendant/respondent was seen by the

plaintiff/petitioner /petitioner on two instances and warned her severely. Subsequently, on one occasion, this plaintiff/petitioner came across few

immoral and ugly letters written by few persons to the defendant/respondent which were kept secretly under her custody so as to affirm the illegal

conducts of the respondent/defendant.

It is seen that very vague averments have been made, which do not go to the extent of stating that the wife is guilty of adultery. The husband has

given evidence as P.W.1. There is no whisper in his deposition that the wife has committed adultery. The only evidence given by him is that he got

a decree for judicial separation in an earlier proceedings, viz., I.D.O.P. No. 55 of 1989 and has marked the judgment and decree therein as Exs.

A.1 and A.2, respectively. He has stated thereafter that for the last 10 years, himself and his wife arc living separately. Apart from that, there is

nothing in the evidence even to implicate the wife as guilty of adultery.

Ex. A.1 is the copy of the order passed in I.D.O.P. 55 of 1989. It is seen therefrom that the husband, in the course of his evidence has admitted

that he knew the person, with whom his wife is living in adultery, but he did not want to implead, him as a party or disclose his name, as the said

person would proceed against him for damage for defamation. That is hardly a ground for not disclosing the name of the adulterer

The decree in ID.O.P. No. 55 of 1989 will not in any way help the husband to get a decree for divorce in this petition, as there is no evidence

to prove the adultery.

Apart from this, the husband has not complied with the provisions of section 11 of the Indian Divorce Act, as he has not impleaded the adulterer

as a co-respondent.

The District Judge ought not to have granted a decree for divorce in the circumstances of the case and the petition for divorce ought to have

been dismissed by him.

In the result, the decree for divorce granted by the Court below is set aside and the suit is dismissed.