Maintainability of the suit filed for divorces u/s 10 of Hindu Marriage Act.

ABDUL HADI, J.

The judgment dated 9-3-1988 in O.S. No. 79 of 1987 on the file of the District Judge, Kanyakumari dissolving the marriage of the plaintiff/ husband with the Ist defendant / wife under S.10 of the Indian Divorce Act (IV of 1869) hereinafter referred to an 'the Act') on the ground that the 1st defendant has been guilty of adultery is placed before us for confirmation under S.17 of the Act.

2. The case of the plaintiff is that the plaintiff, a Christian, married in 1975 the 1st defendant who was a Hindu then, according to "seerthirutha" form of marriage and also brought forth a child. The further case is that the 1st defendant developed illicit intimacy with other men during the time when the plaintiff used to go for his daily work, that on 16-5-1987 when the plaintiff returned home from the place of work unusually earlier, he found the 1st defendant "keeping bed" with the 2nd defendant, that he reprimanded her for her immoral act, that she then left the house and that subsequently she also refused to receive a notice sent by plaintiff on 10-6-1987.

3. The 1st defendant, in her written statement, no doubt admitted partly the allegations in paragraph 1 of the petition, which inter alia referred to the above said seerthirutha form of marriage. But, she denied the other averments in the plaint and contended inter alia that she was treated cruelly by the husband.

4. In the suit, the plaintiff examined himself as P.W. 1 and also examined P.W. 2. The 1st defendant, though cross-examined P.Ws. 1 and 2, did not lot in any evidence on her side. In fact, after the plaintiff's evidence was closed, when the case was posted to 4-3-1988 for the 1st defendant's evidence, the learned counsel for the 1st defendant reported no instructions and the 1st defendant was called absent and set ex parte.

5. The plaintiff as P.W. 1 has reiterated what is contained in the plaint and particularly stated that when he returned home on 16-5-1987, he noticed defendants 1 and 2 without any dress in his house that the 2nd defendant ran away through the back entrance and that he scolded defendant for what has happened. P.W. 2, who is known to the plaintiff, deposed that, on 16-5-1987 when he was going to the plaintiff's house for purchase of cocoanut, he found that the plaintiff was also returning to the house after ploughing work. He also deposed that at that time, the lower part of the entrance door of the plaintiff's house was remaining bolted, but the upper part was slightly remaining open and that when both he and the plaintiff opened the door, they found the 2nd defendant going away with his clothes in his hand. The lower Court also finds that P.W. 2 is not related to P. W. 1 that he appears to be an independent witness and that if P.W. 2 had not really seen the occurrence, he would not have supported the testimony of P.W. 1. The lower Court also finds that the very fact that the 1st defendant, after examining P.Ws. 1 and 2, remained absent, is a strong circumstance in favour of the plaintiff. Further, the Court below also finds that the notice, Ex. A. 1, sent by the plaintiff to the wife was returned with the endorsement "refused". In view of these circumstances, the Court below has come to the conclusion that the plaintiff has proved that the 1st defendant has committed adultery with the 2nd defendant.

6. Even before us, the 1st defendant is not represented by counsel. In fact that all the three parties in this case are represented by different Amicus Curiae only. The plaintiff is represented by Mr. D. Rajagopal. The learned counsel Mr. Sundarasan and Mr. S. Natarajan, appearing respectively for defendants 1 and 2, raise a preliminary objection to the maintainability of the above suit under S.10 of the Act on the ground that the marriage between the plaintiff and the Ist defendant having been not celebrated in accordance with the Indian Christian Marriage Act (XV of 1872), the Indian Divorce Act is not applicable at all. They draw our a