SOYA Vs. A K MOHANAN

JUDGEMENT

(1.) Wife, faced with a decree of divorce on the ground of adultery, is the appellant. The main contention urged is that there is no cogent evidence to arrive at a finding that she was guilty of adultery in order to grant divorce. The only available evidence in support of the allegation was the interested testimony of respondent-husband and certain letters alleged to have been written by the step-father of the appellant to the father of the husband-respondent. Exts. A5 to A10 are the letters. All these letters, except AS and A7, are addressed to the father of the husband and one is written by the brother-in-law. Neither the brother-in-law nor the step-father of the wife was examined. The father of the husband was also not examined. In such circumstances, such letters did not have acceptability in evidence as being not properly proved as known to law. On the other hand, Exts. A5 and A7 are addressed to one Mohanan, who is none other than the husband. Exts. A5 and A7 do not reveal any instance of adultery except that her conduct was not good. That does not have any evidentiary value to attach corroboratlon to the interested testimony of the husband. Therefore, this is a case of no evidence and, therefore, the appeal has to be allowed.

(2.) It is further contended that the only ground urged for divorce is adultery. It was mandatory in terms of Rule 11 (a) of the Hindu Marriage (Kerala) Rules, 1963 to implead the alleged adulterer as co-respondent. The only way out to avoid such impleadment is any of the situations made mention of in Clause (d) of Rule 11. There is no averment that the adulterer is dead or that the wife was leading the life of a prostitute. So, the situations under second or third limb do not arise. On the other hand, it is the specific case of the husband that the wife had been seen in adulterous action along with his own brother Mani. He saw the incident while he was coming from his work place. Therefore, he knows the name of the alleged adulterer. Rule 11(d)(i) provides that the person who files application can avoid his impleadment, if the name of such person is unknown to him. There was no occasion for him to seek dispensation of the impleadment when the alleged adulterer is his own brother whose name is known to him. Therefore, the Court below ought not to have entertained the petition to dispense with such impleadment, Counsel for the appellant submits.

(3.) It is submitted on behalf of the respondent that the letters, Exts. A5 to A7, have been produced to corroborate the testimony of P.W. 1. Therefore, the Court below was justified in coming to the conclusion that the "appellant had committed adultery in order to grant a decree of divorce. It is further submitted that in the petition filed under Clause (d) of Rule 11, it has been specifically submitted that immediately after the incident his brother had gone away and he was not seen thereafter. It was, in the above circumstances, specific averment was made that his whereabouts were not known. Therefore, that shall have to be taken to fall within the fold of Rule 11 (d)(iv).