Failure to implead the alleged adulterer as a co-respondent in a divorce petition based on adultery under the Hindu Marriage Act renders the petition defective and incurable at a later stage.

1. Petitioner filed O.P. (H.M.A.) 71 of 1984 under S.13 of the Hindu Marriage Act on the allegation that his wife (respondent) had left his house without his consent and knowledge on 15-12-1979, and that when he questioned her about it she started ill treating him. It is also alleged that she had developed illegal intimacy with Prabhakaran Nair who is working in the office of the Superintendent of Police, Tele-Communications, Trivandrum. The District Judge did not accept the case of ill treatment alleged in the petition. It was also found that the petition is not maintainable as the alleged adulterer was not made a party to the proceedings.

2. Under S.13(1) of the Hindu Marriage Act adultery is a ground for divorce. S.21 of the Act empowers the High Court to make rules to regulate all proceedings under the Act. The High Court has made Rules and published the same on 24-7-1963. R.11 provides that in every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has, after the solemnisation of the marriage, had sexual intercourse with any person, the petitioner shall make such person a co-respondent. R.11(d) enables the petitioner to apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the corespondent if name of such person is not known to the petitioner despite his efforts for discovery or when such person is dead. In case where the respondent being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or his had sexual intercourse, it is not necessary to make any one co-respondent. R.11(d)(iv) empowers the Court to dispense with the joinder of the co-respondent for any other reason that the Court may deem fit and sufficient to consider.

3. The question that arises for consideration is as to whether the failure to implead the alleged adulterer is fatal to the petition. It has also to be considered whether he could be impleaded at a later stage. R.11(a) envisages that in every petition for divorce on the ground that the respondent is living in adultery or has, after the solemnisation of the marriage, had sexual intercourse with any person, the petitioner shall make such person as co-respondent. This is a mandatory Rule. R.11(d) reads:

"The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the co-respondent in cases covered by sub-rule (a) above on any of the following grounds:

(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery,

(ii) that such person is dead,

(iii) that the respondent being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or has had sexual intercourse,

(iv) for any other reason that the Court may deem fit and sufficient to consider."

Thus the position admits no doubt that in cases not covered by R.11(d) it is incumbent upon the petitioner to implead the adulterer as co-respondent. Having not done so when the original petition was filed before the Court and having not filed a petition supported by the affidavit under R.11(d), the petitioner cannot at a later stage implead the adulterer as co-respondent.

4. When the petition was pending before the trial court, no attempt was made to implead the adulterer as co-respondent. Petitioner has no case that he was not aware of the person who committed adultery with the respondent. Nor has he a case that his wife was leading the life of a prostitute and that he is not aware of the names of the persons with whom she had sexual intercourse. Admittedly no leave was obtained by the petitioner. It is pertinent to cote that the petitioner's definite case is that the respondent had developed illegal intimacy with Prabhakaran Nair. His name and address are specifically stated in the petition. In view of the ab