MIRAPALA VENKATA RAMANA Vs. MIRAPALA PEDDIRAJU

JUDGEMENT

(1.) This appeal is directed against grant of divorce to the wife who is appellant herein. O.P. 120 of 1988 was instituted by the husband/respondent on the file of the Subordinate Judge, Eluru seeking divorce against the appellant herein on the ground of adultery. It was specifically alleged that the appellant has sexual relations with one Meesala Satyanarayana who was residing nearby her matrimonial house. Meesala Satyanarayana has not been made a party and in fact, it was specifically pleaded by the appellant in her written statement. Even though the said plea was recorded by the lower Court, the lower Court did not concentrate on that aspect at all. In a case for divorce basing on adultery, the adulterer is a necessary party and ought to be made second respondent in the instant case. But, the respondent/husband had failed to implead the alleged adulterer and as such the O.P. is hit by non-joinder of necessary party. We are fortified in our view by the judgment of Allahabad High Court in Udai Narain Bajpai v. Smt. Kusum Bajpai, AIR 1975 All 94 wherein the Court held as follows at page 99 :

(2.) That apart, even on merits, there is absolutely no tenable ground for finding that the appellant was living in adultery with the said Misala Satyanarayana. In fact, the plea of adultery was raised by the respondent in maintenance case in M.C. No. 28 of 1988 filed by the appellant in the Court of Additional Judicial First Class Magistrate on her behalf and on behalf of her minor son. The said plea was rejected, but maintenance was granted only to the son and not to the appellant for the reason that the appellant was having Ac. 1.00 land gifted to her by her father at the time of her marriage by way of Pasupukunkuma. In fact that is the crux of the problem as the said land had evoked the entire litigation leading to the divorce proceedings, as the appellant was reluctant and successfully resisted in not succumbing to the illegal demands of the respondent and his mother to sell the said extent of Ac. 1.00 of land for the purpose of investment in his business. The fact that respondent runs Kirana business is not in dispute and the fact that the Kirana business is not feeding fully made him to work part time in a cinema theatre, was expressly admitted by the respondent himself. In view of this, there is ample corroboration that the trouble arose only because the appellant did not concede to the demands of respondent to sell away the one acre land which was given for her sustenance by her father at the time of her marriage. There is absolutely no corroboration for the charge of adultery and in fact the said charge is callous and is absolutely baseless. The respondent did not even say on what date he has seen the appellant with Misala Satyanarayana. Further, it is totally unbelievable that when the respondent and her mother are staying in their house, either Misala Satyanarayana would come to their house at the dead of the night at 1.00 a.m. or appellant would try to leave the company of the respondent at that dead of night and right in the ground floor they would indulge in illegal cohabitation. That apart, the respondent states that he had condoned the said act of adultery but again she was seen in sexual activity with Misala Satyanarayana later during December, 1988 not by himself but by the mother. This is a very vital factor. This fact could have been proved only by examining the mother by the respondent but it has not been done so. The respondent's mother is an elderly lady and had an adulterous act being committed in her house and had she seen the same, she would not have kept quite and she would have chastised the appellant and Misala Satyanarayana and she would have made hue and cry, and secondly had she been examined, certainly she would have corroborated the version of her son/respondent. But, she was not examined and the very fact that she was not examined gives rise to a presumption that the allegation of adultery levelled against the appellant is a total falsity and had the mother of the respondent been examined, she would not have supported this allegation and as such she was not examined. This vital aspect was not taken cognizance of by the lower Court and a fallacy has been committed in just recording a finding that the appellant was leading adulterous life with Misala Satyanarayana.

(3.) Evidence of PWs. 2 and 3 does not inspire any confidence. In fact, they are procured by the respondent as they are his immediate neighbours. That apart, PW 2 does not even say a word about the adultery in his examination-in-chief but in cross-examination he speaks something without any details, very vaguely and without any basis. We do not understand as to why this kind of suicidal cross-examinantion was done by the appellants's counsel in lower Court. In any view of the matter even the elicitation in the cross-examination would not help the respondent for the reason that they are very vague statements made and the very fact that they were made in cross-examination even though vaguely and not in examination in chief would cloud his statement with suspicion that he was stating so in order to accommodate PW 1 i.e., the respondent herein. PW 3 's evidence is no better and except vaguely saying that he had seen the appellant with Misala Satyanarayana while going in rickshaw he does not say any details about the same i.e., either date, month, year or time. It is not that, in the matrimonial house of the appellant, the appellant was living alone. She was living along with respondent, her child and her mother-in-law. It is admitted by the respondent that in his absence, his mother would be looking after the kirana establishment and that is how continuous presence of respondent or his mother is secured eliminating any untoward act and that too, illegal sexual act on the part of the appellant.