Andhra HC (Pre-Telangana)
K. Kumar Raju vs K. Umamaheswari on 15 April, 1994
Equivalent citations: AIR1995AP222, 1994(2)ALT371, I(1995)DMC320, AIR 1995 ANDHRA PRADESH 222, (1994) 2 HINDULR 66, (1995) 21 MARRILJ 73, (1994) 2 CURCC 691, (1994) 1 CURLJ(CCR) 833, (1994) 2 ANDH LT 371, (1995) 1 DMC 320
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri, B.S. Raikote
ORDER Syed Shah Mohammed Quadri, J.
1. In this reference under S. 17 of the Indian Divorce Act by the learned First Additional Chief Judge-cum-First Additional Special Judge for SPE and ACB Cases, Hyderabad, we are -unable to confirm the decree of divorce granted by him on 23-4-1981, in O.P. No.619 of 1990.
2. The parties are Christians. They were married according to Christian rites at Razole Taiuq (East Godavari) on 24-5.1982. It is stated that a male child was born on 29-5-1984. The application for divorce under S. 10 of the Indian Divorce Act was filed by the husband. The allegation on which divorce was claimed is that the respondent is guilty of incestuous adultery, adultery and of leading an immoral life. No finding is recorded by the learned trial Judge on the question of incestuous adultery. However, the learned Judge found that the respondent was guilty of adultery and granted a decree for divorce.
3. The learned counsel for the petitioner submits that as the trial Court found the respondent guilty of adultery, this Court may be pleased to confirm the decree under S. 17 of the Indian Divorce Act. As noted above, we are unable to confirm the decree under reference for reasons more than one. The first reason is that the allegation was one of incestuous adultery and no finding is recorded by the trial Court on that allegation; we may also add that nothing is spoken to on this aspect by P.W. 1 himself. Secondly, S. 11 of the Act enjoins that on an application being presented by the husband for divorce on the ground of adultery, he should make the alleged adulterer a co-respondent to the petition under S. 10 of the Indian Divorce Act. S. 11 reads its follows :--
"11. Adulterer to be co-respondent:--Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court :--
(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 afforts to discover it; (3) that the alleged adulterer is dead.
A plain reading of the above provisions shows that the above Section is mandatory, There are three exceptions to the requirement. The first exception is when the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed; the second exception is when the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it and the third exception is when the alleged adulterer is dead. Even in a case where these exceptions apply there is an obligation on the petitioner to seek the leave of the Court Tor not impleading the alleged adulterer as corespondent. In this case neither the alleged adulterer is impleaded as a co-respondent nor there has been an atlempt to seek permission of the Court under S. 11 of the Indian Divorce Act. In view of this infirmity itself the petition is liable to be dismissed. It is unfortunate that the learned trial Judge missed this important aspect and granted decree for divorce. In our view, no decree for divorce under S. 17 could have been passed by the trial Court on the facts and circumstances of the case pointed out above. We, therefore, decline to confirm the decree. The reference is accordingly rejected. No. costs.
4. Order accordingly.