The non-impleadment of the adulterer is vital to the case and is against the mandatory provision under S.11 of the Indian Divorce Act.

A.R. Lakshmanan, ag. C.J.

Petitioner, who is the husband of the respondent Mary, filed the petition for divorce under S.10 of the Indian Divorce Act on the ground of adultery. According to the petitioner, the marriage between him and the respondent was solemnised on 17.6.1974 in accordance with their customary rites and that he and the respondent were residing together from the date of marriage and in that wedlock five children were born to them. It is stated that since his father was taking treatment in the hospital at Manipal, he stayed in the hospital to help his father and during that period one Johny Thottupurath aged 25 came to the house of the petitioner almost every night and had adulterous intercourse with the respondent. The eldest daughter of the petitioner is stated to be the eyewitness. The said Johny subsequently committed suicide. It is further averred that on 15.1.1988 the respondent left the matrimony al home without the knowledge and consent of the petitioner and she was moving from place to place with different persons. It is alleged that during 1992-93 she was residing with one Joseph Kizhakkekara, whose whereabouts are not known to anyone who ought to know it and that the respondent is leading a loose life. It is also stated that there is no collusion between the parties.

2. The respondent filed a counter affidavit denying the allegations as baseless. It is submitted that she does not know any person by name Joseph Kizhakkekara. The allegation that the respondent is leading a loose life is also denied. It is averred that she was treated with cruelty by the petitioner and that the petitioner is having illicit relationship with a number of women. Hence the respondent prayed for dismissal of the petition.

3. The Principal District Judge, Thalassery formulated the following points for consideration in the petition:

"1) Whether the respondent committed adultery.

2) Whether the petitioner has committed any act which disentitled him from claiming relief.

3) Whether the petitioner is entitled to get decree of divorce.

4) Relief and cost".

The petitioner examined himself as PW1 and his eldest daughter Sheena as P W2. Exts Al and A2 were also marked on his side. The respondent examined herself as Rw.1. No exhibits were marked. The learned District Judge, on the basis of the evidence adduced before him, came to the conclusion that the respondent is guilty of adultery. To come to the said conclusion the learned District Judge relied on the evidence adduced by PW. 2, who is none other than the eldest daughter of the petitioner, who was aged 21 and married at the time of giving evidence. The learned District Judge also held that there was no effective cross-examination challenging the evidence of PW.2 regarding the relationship between the respondent and the other persons named in the petition. Counsel for the respondent pointed out certain contradictions in the evidence of PWs.1 and 2. The arguments advanced by counsel for the respondent that PW2 is highly interested in PW2, that she is completely under the control of her father and that under his influence she is giving false evidence against mother, were also not accepted by the learned District Judge. The District Judge also rejected the case of the respondent that the petitioner deserted the respondent. The District Judge held that there is nothing in evidence to show that the petitioner committed adultery and it was he who deserted the respondent. According to the learned District Judge, there is nothing on record to show that the petition was filed in collusion between the petitioner and the respondent. Relying on the evidence of the petitioner to the effect that he is unable to find out the whereabouts of Joseph Kizhakkekara and hence he is not able to make the adulterer a party, the District judge held that the adulterer could not be arrayed as a party respondent in the Original Petition. In the result, the learned District Judge granted a decree in favour