The order of damages in a divorce case is not appealable in a reference under Section 17 of the Indian Divorce Act.

SREEDHARAN, J.:- This is a reference made by the District Court, Kollam, under Section 17 of the Indian Divorce Act, hereinafter referred to as "the Act". Court below, by order dated 4-7-1991, dissolved the marriage between the petitioner / husband and first respondent / wife. It also directed second respondent, the adulterer, to pay damages to the tune of Rs. 25,000 /- to the petitioner.

2. Husband moved a petition under Sections 10 and 34 of the Act, alleging as follows: - Marriage of the petitioner with the first respondent was solemnised on 9th July, 1981 at the Immaculate Conception Church, Pullichira. At the time of the marriage, petitioner was employed in Abudhabi. After 21 days of cohabitation, he returned to Abudhabi on 28th July, 1981. He returned on leave on 5th October, 1982 and stayed with the first respondent till 16th November, 1983. A male child was born through the wedlock on 25th July, 1983. Later he stayed with the first respondent from 28th March, 1984 to 2nd May, 1984. Thereafter, he could return to India only in September, 1989. On 29-3-1990, petitioner's cousin brother informed him over the phone that first respondent and the child are missing. Father of the first respondent sent letters to the petitioner informing that first respondent and the child are missing. Petitioner's father lodged a complaint with the police on 23-3-1990 alleging that first respondent and the child are missing. Later, petitioner's mother filed a complaint before the Chief Judicial Magistrate, Kollam on 18-4-1990 under Section 97 of the Code of Criminal Procedure and Section 366 of the Penal Code, after getting information that first respondent eloped with the second respondent and the first respondent and the child are detained in the Quarters of the second respondent in Viyyoor Central Jail, Thrissur. Magistrate issued a search warrant. Pursuant to that, Sub-Inspector of Police, Kottiyam Police Station searched the Quarters of the second respondent and arrested respondents 1 and 2 and the child from the Quarters and produced them before the Magistrate. When the Magistrate ascertained the wishes of the first respondent, she stated that she prefers to live with her lover, the second respondent. Custody of the child was given to first respondent's father. First respondent, being a major, was let off free. She left the place in the company of the second respondent.

3. On getting information about the elopement of the first respondent along with the second respondent, petitioner rushed to India and reached Kollam on 8th May, 1990. He moved application under Sections 10 and 34 of the Act before the District Court, Kollam on 4-6-1990.

4. Respondents appeared before the District Court. First respondent filed objections.

Second respondent did not contest the case.

Petitioner got himself examined as PW 1 and proved Exhibits A-1 to A-13. On an appreciation of the entire evidence in the case, District Court came to the conclusion that there are more than sufficient materials to prove that first respondent was guilty of adultery with the second respondent, that there is no collusion between the petitioner and the first respondent, and that the prayer for divorce has to be allowed. On the claim for damages put forward by the petitioner, the learned Judge held that the interest of justice will be met only if the painful petitioner is awarded damages to the tune of Rs. 25,000/- by the second respondent besides his liability to pay costs to the petitioner.

5. Before this Court, the second respondent entered appearance and raised two contentions. The first one is that sufficient opportunity was not afforded to him by the trial Court to put forward his contentions, and the second one is that the award of damages to the petitioner as against him is not based on any material and that it has to be vacated. We shall examine these contentions in detail.

6. Notice of the petition filed before the District Court, Kollam was served on the second respo