Thomas Kurian vs Meena and Others

Pasayat, J.—Accepting the prayer made in terms of Section 10 of the Indian Divorce Act, 1869 (in short ''the Act''), learned Additional District Judge-I, Mavelikkara, has passed a decree of divorce dissolving the marriage between the petitioner and the first respondent. The matter has been placed before this Full Bench as required u/s 17 of the Act.

Petitioner''s case before the learned trial Judge was that his marriage with the first respondent was solemnised on 31-12-1987 and two children were borne to them. The first respondent developed an illicit relationship with the second respondent and they started leading an adulterous life. On 7-1-1995 the first respondent eloped with the second respondent along with the two children. A complaint was lodged before the police and at the intervention of the police, the first child was handed over to the petitioner and the other one continued staying with the respondents, who were living together in the house of the second respondent. A prayer was made for dissolution of the marriage on the ground that the first respondent was living in adultery with the second respondent. In spite of notice respondents did not appear before the learned trial Judge. Taking into account materials brought on record by the petitioner, learned trial Judge came to the conclusion that the first respondent was leading an adulterpus life with the second respondent and there was no material to show that the petition was filed in collusion with the first respondent.

When the matter came up for hearing, none appeared for the parties, in spite of notice. We find that a positive finding has been recorded by the learned trial Judge that there was no collusion between the parties and no fact was withheld from adjudication. As required u/s 11 of the Act, the alleged adulterer was impleaded as co-respondent. impleadment of the alleged adulterer is a mandatory requirement and unless the applicant is excused from impleading the alleged adulterer as co-respondent in the petition, he is bound to be impleaded. Three circumstances are enumerated in the provision which permit the alleged adulterer of not being impleaded. That question does not arise here as the alleged adulterer was impleaded as respondent No. 2. The object of Section 11 being the prohibition of any form of collusive divorce, as a matter of course and mere formality of the presence of the co-respondent cannot be dispensed with. This aspect was highlighted by a Full Bench of the Orissa High Court in Madhusmita Nayak Vs. Simadri Nayak and Another, and a Full Bench of this Court in Joseph v. Mary 1999 (2) KLT 786 : (1999 AIHC 4258). It is obligatory on a Court entertaining a petition under the Act to consider all the aspects of the case which are mentioned in Section 11 and Section 14 and that obligation is not extinguished by the mere fact that the case is an undefended one. u/s 12 in a petition for dissolution of marriage, the Court has a duty of satisfying itself so far as it reasonably can, not only as to facts alleged, but whether the petitioner has been accessory, to, conniving at or has condoned the adultery. This is so in the background of Section 13 of the Act. Section 14 requires that the Court should be satisfied on evidence that the case of the petitioner has been proved. The words "satisfied on the evidence" imply that the duty of the Court is to pronounce a decree if satisfied that the case of the petitioner has been proved, but dismiss the petition if not so satisfied. The rule laid down by the House of Lords in Preston Jones v. Preston Jones 1951 AC 391 provides the principle and rule which Courts should apply to cases governed by the Act. As the alleged adulterer has been impleaded and was served with notice requiring his presence, the requirements of Section 11 of the Act have been fulfilled. Justice and fair play demand that the co-respondent in adultery should also be brought to Court to enable him to get a clean bill should be so deserve. Again the inclusion of the co-respondent eliminates the chance of collusion or connivance.

Though, therefore the section apparently lays down a procedural matter, it has great Importance in public policy and has assumed mandatory nature.

In the circumstances highlighted above, we confirm the decree of divorce passed by the learned Additional District Judge-I. Mavelikkara. Let the decree of divorce be drawn out dissolving the marriage solemnised between the petitioner and the first respondent on 31-12-1987.