In a petition for divorce by the husband on the ground of adultery of the wife, the court has the power to require proof of adultery even when it is admitted by the respondent.

The decree nisi passed by the Additional Deputy Commissioner, West Garo Hills, Tura under Section 10 of the Indian Divorce Act, 1869 has come up for confirmation under Section 17 of that Act in this reference.

2. The petitioner sued for dissolution of his marriage with the respondent Smti. Poiby Momin on the ground of adultery coupled with desertion. Examining himself, he deposed that the parties were married according to the Christian rites on 15th April, 1954 whereafter they lived as husband and wife. After about 6 months of marriage the respondent deserted him and subsequently she lived with one Honith Sangma as his mistress and thereby committed adultery with him and the petitioner and the respondent have remained completely separate since then. He further deposed that there was no collusion or connivance between the parties in the matter of filing the petition for divorce ; and that the respondent had no objection to the dissolution of their marriage which might be dissolved on the ground of adultery and mutual consent. He examined another witness Sambilson Momin who fully corroborated him.

3. Respondent Smti. Poiby Momin examined herself and deposed that since after 6 months of their marriage, since 1954, till date they had been living in complete separation. She also admitted she lived with one Honith Sangma as his wife and that she had no objection to the petition of her husband for divorce, and that she also submitted a petition on that day to the effect that she had no objection to the petition for divorce being granted.

4. The learned court on the basis of the evidence on record granted the decree nisi dissolving the marriage on the ground of adultery coupled with desertion.

5. We have perused the petition for divorce and the evidence on record and we find no infirmity to the finding that the respondent deserted the petitioner as long back as in 1954 and had since then been living separately with one Honith Sangma. This has been admitted by the respondent herself. We also find no evidence of any collusion or connivance between the parties in the matter of filing this petition for divorce.

6. We, however, find one procedural defect in this petition, under Section 11 of the Indian Divorce Act. 1869 where adultery is taken by the husband as a ground for dissolution of marriage the adulterer had to be made a co-respondent. Section 11 of that Act provides :

"11. Adulterer to be co-respondent-Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a 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 :

11 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 a legged adulterer is unknown to the petitioner, although he has made due efforts to discover it;

(3) that the alleged adulterer is d«ad."

From the above provision there is no doubt that the petitioner shall make the alleged adulterer a correspondent to the petition unless he is excused from so doing on one or more of the three ground stated in the Section. From the records we do not find any application for such excuse to have been filed ; and there is no order excusing the petitioner from making the adulterer a c --respondent. On the other hand, we find that the statement of the petitioner that the respondent has been living in adultery with one Honith Sangma has been admitted by the respondent. The question, therefore, is (whether under any circumstances a decree for dissolution of marriage could be granted on a petition by the husband without impleading the correspondent? The answer is naturally in the negative in view of the discretion given to the court to excuse from making the alleged adulterer a co-respondent on any or more of the grounds stated in Section 11. The underlying reasons for such a provision are two. Firstly, adu