JOSEPH Vs. MARY

JUDGEMENT

(1.) PETITIONER, who is the husband of the respondent Mary, filed the petition for divorce under S. 10 of the Indian Divorce Act on the ground of adultery. According to the petitioner, the marriage between him and the respondent was solemnised on 17. 6. 1974 in accordance with their customary rites and that he and the respondent were residing together from the date of marriage and in that wedlock five children were born to them. It is stated that since his father was taking treatment in the hospital at Manipal, he stayed in the hospital to help his father and during that period one Johny Thottupurath aged 25 came to the house of the petitioner almost every night and had adulterous intercourse with the respondent. The eldest daughter of the petitioner is stated to be the eyewitness. The said Johny subsequently committed suicide. It is further averred that on 15. 1. 1988 the respondent left the matrimony al home without the knowledge and consent of the petitioner and she was moving from place to place with different persons. It is alleged that during 1992-93 she was residing with one Joseph Kizhakkekara, whose whereabouts are not known to anyone who ought to know it and that the respondent is leading a loose life. It is also stated that there is no collusion between the parties.

(2.) THE respondent filed a counter affidavit denying the allegations as baseless. It is submitted that she does not know any person by name Joseph Kizhakkekara. THE allegation that the respondent is leading a loose life is also denied. It is averred that she was treated with cruelty by the petitioner and that the petitioner is having illicit relationship with a number of women. Hence the respondent prayed for dismissal of the petition.

(3.) IN Halsbury' s Laws of England meaning of adultery' has been given as follows "for the purpose of relief in the matrimonial jurisdiction, adultery means consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse". A Full Bench of the Orissa High Court in the decision reported in Madhusmitha Nayak v. Simadri Nayak (AIR 1997 Ori. 162) held in a similar case that the judge of the Family Court did not at all apply his mind to the provisions of S. 10 of the Act and did not consider the case of the parties in the background of that section. The Full Bench held as follows : "a Christian marriage can be dissolved only under the provisions of a statute of general application to such marriages. Grounds for dissolution of marriage enumerated in S. 10 cannot be extended. IN view of the provisions of Ss. 12,13,14 and 47 of the Act, a decree for divorce on consent of the parties is not permissible. It is only on the proof of misconduct as envisaged by S. 16 of the Act that a decree for divorce is permissible subject to the restrictions contained in Ss. 16 and 17 of the Act. Further, objectives. 11 being the prevention of any form of collusive divorce, it is not a mere formality to dispense with the presence of the co-respondent. IN the case at hand, alleged adulterer has not been impleaded as a co-respondent. Until leave to dispense with the presence of the co-respondent, the suit cannot proceed. IN the absence of an application under S. 11 for excusting the petitioner-husband from not making the adulterer a co-respondent in the petition, the Court has no jurisdiction to entertain the petition. 4. Therefore, the matter is remitted back to learned judge, Family Court to re-hear the case and dispose it of in accordance with law within three months from the date of appearance of parties. &quot ; IN the case on hand no application for leave to dispense with the presence of the co-respondent was ever filed and orders passed. The section says that unless leave to dispense with the presence of the co-respondent is granted, the petition cannot proceed and that the court has no jurisdiction to entertain the petition.