ELAM PAKKAT MATHEW Vs. MULAM KOTHRAYIL KOCHURANI

JUDGEMENT

(1.) Husband is the petitioner in this reference. Respondent is his wife. The marriage was solemnised in accordance with the Christian rites on 24.6.96. It is alleged that even prior to the marriage respondent was pregnant by somebody else and she delivered a baby on 27.1.97. The petitioner filed O.P. 122/97 before the Family Court for an injunction to restrain the respondent from using his name as the father of the child born to her. When the Original Petition came up for evidence on 23.1.98 the respondent admitted that the petitioner is not the father of the child born to her and O.P. 112/97 was allowed in his favour. It is further alleged that the petitioner has been living separately from the respondent prior to one year from the filing of the petition and that the respondent was impregnated by somebody else, could not live with her and that she is living in adultery and therefore, the petitioner is entitled for a decree on the ground of adultery. The respondent remained ex parte. Before the lower court petitioner was examined as PW 1 and Ext. A1, copy of the certificate issued from St. George Church, Vilangad was marked. Respondent remained ex parte and no evidence was adduced on her behalf either oral or documentary. The Family Court, Kozhikode on the basis of the evidence allowed the petition and granted a decree for divorce under S.10 of the Indian Divorce Act, 1869 subject to confirmation by this Court under S.17 of the Act.

(2.) We are of the opinion that the decree granted by the Family Court under S.10 of the Act is not correct. S.10 deals with filing of the petition for dissolution by the husband. It says that a husband may present a petition before the District Court or to the High Court, praying that his wife has, since the solemnization thereof, been guilty of adultery. The said Section also provides the filing of a petition for dissolution by the wife. It says that a wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion and gone through a form of marriage with another woman or has been guilty of incestuous adultery or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mens et toro or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. Every such petition shall state as distinctly as the nature of the case permits the facts on which the claim to have such marriages dissolved, is founded. Original Petition was filed by the husband under S.10 for dissolution of the marriage on the ground of adultery. Adultery is the only ground available to the husband for filing a petition for dissolution of marriage under the Indian Divorce Act and no other grounds are available to the husband. When a petition is filed under S.10 of the Act on the ground of adultery the husband has to say and prove that since the solemnization of the marriage between him and his wife, the wife is guilty of adultery. In the petition it is only stated that the marriage was solemnized between the parties on 24.6.96 and even prior to the marriage the respondent was pregnated by somebody else and she delivered a baby on 27.1.97. We are of the opinion that the decree granted by the lower Court under S.10 of the Act is not correct since S.10 contemplates granting of a decree on the ground of adultery since the solemnization of the marriage and not before. This apart, the alleged adulterer has not been made a corespondent in this case and no petition was filed under S.11 of the Act, which is mandatory. We are of the opinion that a petition under S.19 alone is competent on the basis of the allegations now made in the petition and not a petition under S.10. S.19 of the Act provides that a decree may be made on the following grounds :-

(3.) The narration of events in the instant case will only lead to the fraud committed by the wife on the husband. We therefore, set aside the decree granted by the Family Court in O.P. 60/98 dated 26.5.98 reserving liberty to the petitioner to file a fresh petition if he so desires on any of the grounds in S.19 of the Indian Divorce Act before the proper forum.