Parkash Ram Kumar vs Smt. Victoria
2000 Latest Caselaw 608 Del

ORDER

Arijit Pasayat, CJ.

1. An application for divorce was filed under Section 10 of Indian Divorce Act 1869 (in short the "Act") by the husband on the ground of adultery. Accepting the prayer a decree for divorce has been passed and has been sent to this Court for confirmation under Section 7 of the Act by learned Additional District Judge, New Delhi (hereinafter referred to as "TrialJudge").

2. Stand set out in the application before the learned District Judge are as follows:-

3. Sh. Parkash Ram Kumar (hereinafter referred to as the "husband") married Victoria (hereinafter referred to as his "wife") on 18th October, 1975 as per Christian rites. Three children were born to them from the wedlock. They had been living peacefully till about 1987. In the month of November 1987 differences arose between them because respondent No.2 Robin started visiting respondent No. 1. Robin used to stay in the house of respondent No.1's brother and subsequently developed friendship with respondent No. 1. In the absence of the petitioner, respondent No. 1 also started visiting her brother's house and met the respondent No. 2. These activities came to the knowledge of the petitioner from his children and neighbours. Though he objected to it there was no effect on both the respondents. In January 1988 respondent No.2 insulted petitioner and both the respondents treated the petitioner with cruelty. Respondents 1 and 2 started living as husband and wife and told the petitioner that they were living in each other's company as husband and wife. Petitioner was subjected to mental cruelty.

4. In other words it was stated that respondent No. 1 deserted her matrimonial house and started leading adulterous life with respondent No. 2. Though the respondents were served with notice by publication in "Statesman" dated 1st June 1999 there was no appearance on their behalf before learned trial Judge. Therefore they were set ex parte. Several witnesses were examined by the petitioner to substantiate his case. Learned Additional District Judge, Delhi on consideration of the material and evidence on record came to hold that petitioner has established his case to the effect that respondent no. 1 was living in adultery with respondent No. 2. Accordingly he held that petitioner was entitled for grant of divorce on the ground of adultery.

5. There is no appearance on behalf of the parties when the matter was called. We find that the trial Judge has dealt with the evidence brought on record in detail and has come to a positive finding. In view of the unchallenged testimony of the witnesses examined, we find no reason to take a view different from one taken by learned trial Judge. Additionally Section 11 which needs implication of adulterer to be co-respondent has been complied with and the alleged adulterer was in fact imp leaded as co-respondent. Impleadment of the alleged adulterer is a mandatory requirement and unless the applicant is excused from impleading the alleged adulterer as a co-respondent in the petition, he is bound to be imp leaded. Three circumstances are enumerated in the provision which permit the alleged adulterer of not being imp leaded. The three grounds are -

(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) the alleged adulterer is dead.

The object of Section 11 being the ohibition of any form of collusive divorce, as a matter of course and mere formality, presence of the corespondent cannot be dispensed with. It is obligation on a Court entertaining a petition under the Act to consider all the aspects of the case which are mentioned in Sections 11 and 14 and that obligation is not extinguished by the mere fact that the case is an undefended one. Under Section 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 also 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 case of 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 case of petitioner has been proved, but dismiss the petition if not so satis-

fied. The rule laid down by the House of Lords in Preston Jones Vs. 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 imp leaded and was served with notice requiring his presence, requirements of Section 11 of the Act have been fulfillled. Justice and fair play demand that the co-respondent in adultery should also be brought to Court to enable him to a clean bill should he so deserve. Again the inclusion of the co-respondent eliminate the chance of collusion or connivance. Though, therefore Section 11 apparently lays down a procedural matter, it has great importance in public policy and has assumed mandatory nature.

6. On the aforesaid background we accept the reference and confirm the decree of divorce dated 15th December 1990 passed by learned trial Judge.

7. Reference stands disposed of accordingly.