SUSANTA KUMAR MITRA Vs. HIMANGSHU PROVA MITRA

JUDGEMENT

(1.) These proceedings have come up before us for confirmation under Section 17 of the Indian Divorce Act. The learned Judge decreed the suit ex parte without costs subject to confirmation by this Court. The petition was by the husband against the wife for dissolution of the marriage.

(2.) The petitioner examined himself and called his mother as a witness. On that evidence the learned Judge gave the decree as aforesaid.

(3.) The learned Judge treats this petition as one under Section 10 of the Indian Divorce Act on the ground of adultery coupled with desertion without reasonable excuse for more than two years. Unfortunately he has failed to notice that the word "adultery" was not even alleged in the petition. Paragraph 5 of the petition says that "the respondent used to bring people into the house and used to pass nights with them". That, in our opinion. Is not enough assertion and allegation of the actual act of adultery. Adultery must at least be averred and alleged in the petition under Section 10 of the Indian Divorce Act and reasonably proved. In fact the petitioner in his evidence also uses the same expression, namely, "my wife used to bring young men into the house and spend nights with them." It is true that towards the end of his evidence he says that he had not condoned the "adultery" and that his application was not collusive. But then before any question of condonation of adultery arises it must first at least be alleged and then proved. That has not been done on the records before us. All that the petitioner's mother proves is that the respondent lived a "vicious life". A life of vice is not necessarily one of adultery. Living a vicious life may or may not be adultery and that evidence is not enough, in the result we hold that adultery has neither been pleaded nor proved.