SEBASTIAN Vs. LINET SUBA

JUDGEMENT

(1.) THIS is a reference made by the District Court, Kollam, under S. 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 Ss. 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 to 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 S. 97 of the Code of Criminal Procedure and S. 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.) 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.