R AMIRDA AMALRAJ Vs. THAMIMA

JUDGEMENT

(1.) THE Original petition is for divorce on the ground of adultery. According to the petitioner, after the marriage, they lived together as husband and wife and after one and a half years a son was born on 25. 8. 1984. THE child was born at Neela Nursing Home at Nanganallur, Saidapet Taluk. After the birth of the son, the respondent lived together with the petitioner's parents at Ramapuram. THEreafter, they shifted to Mangalmanagar, Mugalivakkam near Porur, Saidapet Taluk from 1. 10. 1985 as desired by the respondent the child was left in the custody of the parents of the petitioner as both the petitioner and the respondent were employed and had to go to office in the morning and return in the evening. THE respondent without the knowledge and consent of the petitioner left the house and took away with her the male child from the parents house of the petitioner, in the middle of October, 1985. THEreafter she refused to return in spite of several attempts made by the petitioner. THE petitioner came to know that the respondent is leading a life of prostitution. THE respondent is guilty of adultery. On 13. 2. 1988 the petitioner actually saw the respondent at 9. 10 p. m. rising on the pillion of a tvs 50, driven by a adult male aged about 30. THE petitioner was then returning in his scooter with his friend M. Veeraghavan after seeing a movie at Alankar, Mount Road , Madras . On seeing the respondent going ahead, the petitioner brought his scooter near the TVS 50. On seeing the petitioner, the respondent and her companion allowed down the vehicle and stopped the TVS 50. THE petitioner stopped his scooter and made an approach with his friend towards the respondent. But before they could reach the respondent she and her male companion drifted way in haste towards guindy Railway Station. THE petitioner went to the house of the mother of the respondent and complained about the conduct of the respondent. THE respondent did not return to the house of her mother at Nanganallur. It is further stated that the respondent is leading a life of prostitution and adultery after she left the petitioner in the middle of October, 1985. Though the petitioner had a glimpse of one of the adulterors with whom the respondent was riding on the pillion in TVS 50 on 13. 2. 1988 the name of the adulteror is unknown to the petitioner, although he has made due efforts to discover, it when the respondent returned by 10. 00 p. m. on 13. 2. 1988 to her parents, house and when questioned by the petitioner and her mother, she refused to give the name of the person with whom she was riding on TVS 50. On the above allegation, the petition for divorce was filed.

(2.) A counter was filed by the respondent, in which she has denied the allegations made by the petitioner. She has said expressly that she was not leading a life of prostitution and she never committed any act of adultery. According to her she did not ride with anybody on a TVS 50 on 13. 2. 1988 as alleged. She has also stated that the name of the alleged adulteror has not been mentioned by the petitioner and no evidence to prove the prostitution and adultery was adduced. The petition has to be dismissed with costs. She has further stated that unless the petitioner withdrew the false allegations made against her, she reserves her right to prosecute the petitioner and claim damage.

(3.) EVEN when the respondent took an objection in the counter-statement that the petition was not maintainable, the learned District judge did not choose to decide the issue as a preliminary issue. On the other hand he framed four issues, one of which related to the maintainability of the petition for non joinder of the adulterer. The learned Judge ought to have called upon the petitioner to file an application under Sec. 11 of the Act and considered the same before proceeding with the main petition. The procedure adopted by the learned District Judge in framing the issue as to maintainability as one among the other issues is erroneous.