( 1 ) THIS appeal is directed against grant of divorce to the wife who is appellant herein. O. P. 120 of 1988 was instituted by the husband/respondent on the file of the Subordinate Judge, Eluru seeking divorce against the appellant herein on the ground of adultery. It was specifically alleged that the appellant has sexual relations with one Meesala Satyanarayana who was residing nearby her matrimonial house. Meesala Satyanarayana has not been made a party and in fact, it was specifically pleaded by the appellant in her written statement. Even though the said plea was recorded by the lower Court, the lower Court did not concentrate on that aspect at all. In a case for divorce basing on adultery, the adulterer is a necessary party and ought to be made second respondent in the instant case. But, the respondent/husband had failed to implead the alleged adulterer and as such the O. P. is hit by non-joinder of necessary party. We are fortified in our view by the judgment of Allahabad High Court in Udai Narain Bajpai v. Smt. Kusum Bajpai, AIR 1975 All 94 wherein the Court held as follows at page 99 :"learned counsel for the respondent also placed reliance on the decision in AIR 1942 All 223 Bowman W. P. v. H. D. Bowman for the purpose of contending that till such time as the appellant s application for amendment of his petition by addition of the alleged adulterers as co-respondents was allowed and the petition was amended accordingly, it was not in accordance with law and not maintainable. It was urged that till the co-respondents were impleaded it was not open to the Court either to frame issues in the petition or admit evidence on Issue No. 5 and consequently the framing of the issues by the trial Court as well as the finding on Issue No. 5 are without jurisdiction. There is force in this contention which must be accepted. "

( 2 ) THAT apart, even on merits, there is absolutely no tenable ground for finding that the appellant was living in adultery with the said Misala Satyanarayana. In fact, the plea of adultery was raised by the respondent in maintenance case in M. C. No. 28 of 1988 filed by the appellant in the Court of Additional Judicial First Class Magistrate on her behalf and on behalf of her minor son. The said plea was rejected, but maintenance was granted only to the son and not to the appellant for the reason that the appellant was having Ac. 1. 00 land gifted to her by her father at the time of her marriage by way of Pasupukunkuma. In fact that is the crux of the problem as the said land had evoked the entire litigation leading to the divorce proceedings, as the appellant was reluctant and successfully resisted in not succumbing to the illegal demands of the respondent and his mother to sell the said extent of Ac. 1. 00 of land for the purpose of investment in his business. The fact that respondent runs Kirana business is not in dispute and the fact that the Kirana business is not feeding fully made him to work part time in a cinema theatre, was expressly admitted by the respondent himself. In view of this, there is ample corroboration that the trouble arose only because the appellant did not concede to the demands of respondent to sell away the one acre land which was given for her sustenance by her father at the time of her marriage. There is absolutely no corroboration for the charge of adultery and in fact the said charge is callous and is absolutely baseless. The respondent did not even say on what date he has seen the appellant with Misala Satyanarayana. Further, it is totally unbelievable that when the respondent and her mother are staying in their house, either Misala Satyanarayana would come to their house at the dead of the night at 1. 00 a. m. or appellant would try to leave the company of the respondent at that dead of night and right in the ground floor they would indulge in illegal cohabitation. That apart, the respondent states that he had condoned the said act of adultery but again she was seen in sexua

Click Here to Read the rest of this document