The main legal point established in the judgment is the importance of complying with S.11 of the Indian Divorce Act, the burden of proof on the petitioner to rebut the presumption of legitimacy under S.112 of the Evidence Act, and the prevention of collusion between husband and wife.

1. This is an appeal by the husband from the order passed by the Additional District Court, Mavelikkara dismissing his petition under S.10 of the Indian Divorce Act (for short the Act) praying that his marriage with the respondent may be dissolved on the ground that his wife has, since the solemnisation thereof, been guilty of adultery.

2. In the petition the appellant averred that he last resided with the respondent in her house for two months in August 1967 when he came on leave, and immediately afterwards they resided together in the petitioner's house for a few days and thereafter the appellant returned to his place of work. He is in the Armed Forces and has been serving outside the State There is the further averment that when be came on leave in June 1968 he did not find his wife and child in his house and he learnt that the respondent was leading an immoral life and that when she was questioned she denied it. He returned to his place of work. There is a specific assertion that after the appellant stayed with his wife till the 10th October 1967 when he was on leave he had never lived with his wife as husband and wife even for a day. It is said that when he came on leave on the 6th August, 1969 to his house he learned that a child was born to his wife due to her immoral conduct and that she gave birth to the child at the Victoria Hospital in Quilon. The allegations in Para.6, 7, 8 and 9 may be extracted.

3. In the petition no one was therefore impleaded as co-respondent. The averments in the petition were denied by the respondent. No leave was sought for or granted as required by S.11 of the Act. The case went to trial and the appellant examined himself and 7 other witnesses and produced Exts. P-1 to P-12. The respondent did not give any evidence. The court framed two points (1) whether the petition is not maintainable for non-compliance of S.11 of the Divorce Act IV of 1869 and (2) whether the allegation of adultery made by the petitioner against his wife is true.

4. The first point was found against the appellant. On the second point after considering the evidence in the case the court came to the conclusion that regarding the case of adultery set up by the petitioner, sufficient independent reliable evidence was not available but at the same time "it would appear that the counter-petitioner has been leading an immoral life". The court also found that it is not unreasonable to infer that the appellant had access to her in July-August 1968. In the absence of clear evidence that there was no such access it was held that it must be presumed that the child born by the middle of March 1969 must be his. The petition was accordingly dismissed.

5. Counsel for the appellant contended that since the case proceeded to trial and the evidence was permitted to be let in the appellant should not have been non-suited at the end of the trial on the ground that there was no specific motion as envisaged by S.11, at the inception, for excusing him from making the co-respondent a party. The procedure to be followed in such cases is often prescribed by rules and the rules normally provide that there must be motion supported by an affidavit, at the inception. The applicant for divorce will also have to establish that one or the other of the three conditions mentioned in S.11 of the Act is satisfied. That section is in these terms:

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:

(1) 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 alleged adulterer is unknown to the petitioner although he. has made due efforts to discover it;

(3) that the alleged adulterer is dead."

6. The requirement of section is not a mere f