JUDGMENT :

K.R. Surana, J.

Heard Mr. S. Taye, learned counsel for the appellant and Mr. C. Modi, learned counsel for the respondent.

2. The judgment and decree dated 16.11.2020 passed by the learned District Judge, East Siang District, Pasighat in Divorce Petition No. 4/2016 has been assailed in this appeal filed under section 28 of the Hindu Marriage Act, 1955. By the said judgment and decree, the marriage between the parties was dissolved.

3. The respondent, as plaintiff, had instituted a divorce suit against the appellant under section 13(1)(i) and 13(i-a) of the Hindu Marriage Act, 1955 which was registered as Divorce Petition No. 4/2016. It was alleged in the plaint that the appellant, who was the wife of the respondent, was a habitual gambler, who played gambling-rummy with male members day and night without caring for the respondent and was also living in adultery with one Kaling Perme, thereby caused cruelty to the respondent. On receipt of summons, the respondent appeared and contested the case by filing written statement on 06.06.2016 and denied all the allegations against her. It was pleaded in defence, amongst others, that the respondent used to beat her after consuming liquor without any reason and that the suit was bad for non-joinder of the person with whom the appellant was allegedly committing adultery and that the respondent has deserted her.

4. The respondent-plaintiff had examined six PWs, viz., Subroto Baruah (Plaintiff-PW-1); Taging Taloh (PW-3); Talem Taloh (PW-4); Edison Taloh (PW-5); Obit Tamuk (PW-6); and Bani Perme (PW-7). It appears that no one was examined as PW-2. The respondent-plaintiff had proved the following documents, viz., Order dated 14.06.2013 in Case No. 7/2012 (P.Ext.A); Minutes dated 28.09.2014 of Dusum Kebang (P.Ext.B). The appellant examined only herself as DW-1 and that she had not exhibited any document. The learned trial Court had decreed the suit. The learned trial Court had held that there was a preponderance of probability that the appellant lived an adulterous life and further concluded that because of such conduct of the appellant, the respondent had left his marital home on 11.10.2012 and the parties were living separately for about 8 (eight) years without any consummation and concluded that the appellant did not make any attempt for the reconciliation or for restitution of conjugal life. Accordingly, it was held that there was a constructive desertion by the appellant and accordingly, on the ground that the relationship between the parties had broken down irretrievably without any hope in the immediate future for reconciliation. Thus, it was held that the respondent was entitled to a decree of divorce by dissolution of marriage.

5. The learned counsel for the appellant had urged all the grounds for this appeal. It was also submitted that under Rule 8 of the Gauhati High Court Rules, framed to regulate the procedure of cases under the Hindu Marriage Act, it was required that the person against whom allegation of adultery is made, was required to be impleaded as a party respondent in the suit. It was also submitted that in the draft issues filed by the appellant on 12.06.2016, the appellant had suggested an issue as to whether the suit is bad for non-joinder or mis-joinder of the necessary and proper party, which was, however, not framed. It was submitted that all the 6 (six) PWs examined by the respondent-plaintiff had given hearsay evidence on alleged adultery and therefore, the allegation could not be proved. It was also submitted that in the absence of impleading the alleged adulterous partner of the appellant, neither adultery nor cruelty against the respondent could be proved against the appellant. It was also submitted that in light of the evidence on record, it was not available to the learned trial Court to grant divorce on the ground of irretrievable break down of marriage as the same was not provided for as a ground of dissolution of marriage under the Hindu Marriage Ac