Thottathil B.Radhakrishnan, J.
1. A wife facing proceedings for dissolution of marriage on a petition alleging grounds falling under Clauses (i) and (x) of Section 10(1) of the Divorce Act, 1869, has invoked Article 227 of the Constitution of India, challenging the Family Court's order granting leave to her husband to prosecute that petition without impleading the alleged adulterers as co-respondents. Hereinafter, we refer to the parties as 'wife' and 'husband' respectively.
2. Learned counsel for the wife argued that the court below erred in law and on facts in stating that the pleadings contain the allegation that the wife was leading the life of a prostitute, and that the husband having mentioned the names of the adulterers of the wife, ought to have impleaded them as co- respondents and leave could not have been granted to excuse the husband from doing so, in terms of Section 11 of the Divorce Act. Per contra, the husband's learned counsel argued that while the original petition before the Family Court contains the names of few persons who are charged as adulterers, the affidavit filed in support of the application seeking exemption from their impleadment as co-respondents contains the clear statement that the husband does not know the complete address of those persons and, therefore, the court below was justified in passing the order impugned. On facts, it was attempted to be pointed out that the names mentioned in the original petition seeking dissolution of marriage were included on the basis of entries found in a diary maintained by the wife as discovered by the husband and his mother. It is argued that the scope of Section 11(b) of the Divorce Act has to be understood as one meaning that the identity of the person for the purpose of impleadment should be available, to enable impleadment; to insist on such impleadment.
3. A petition for dissolution of marriage on one or more grounds enumerated in Section 10, to be presented to the District Court falls within the jurisdiction of the Family Court in terms of Section 7 of the Family Courts Act, 1984, for short, the “FC Act”. Section 10 of the FC Act provides, among other things, that subject to the other provisions of that Act and the Rules framed thereunder, the provisions of Code of Civil Procedure and of any other law for the time being in force shall apply to the suits and proceedings before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such court. Rule 10 of the Family Courts (Kerala) Rules, 1989, made in exercise of the powers conferred by Section 23 of the FC Act, provides, among other things, that summons together with a copy of the petition or application and annexures, if any, shall be served in the manner prescribed in the Code of Civil Procedure, save in proceedings under Chapter IX of the Code of Criminal Procedure. Section 45 of the Divorce Act provides that, subject to the provisions contained in that Act, all proceedings under that Act shall be regulated by the Code of Civil Procedure. We are not shown that this High Court has framed rules under the Divorce Act though such rule-making process is provided in Section 62 of that Act. But, that makes no difference and it is worth- mentioning here that as per the proviso to Section 62, even if such rules are made, they shall be consistent with the provisions of the Divorce Act and Code of Civil Procedure. The afore-noted provisions in the FC Act and the Divorce Act clearly show that all proceedings before the Family Court under the Divorce Act shall stand regulated by the bunch of enabling provisions referable to the Code of Civil Procedure, the Divorce Act and the FC Act. Section 50 of the Divorce Act provides that every petition under that Act shall be served on the party to be affected thereby.
4. Section 11 of the Divorce Act provides that on a petition for dissolution of marriage presented by a husband or wife on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a co-respondent, unless the petitioner is excused by the Court from so doing. Such an order by the Court excusing the petitioner from making the alleged adulterer or adulteress a co-respondent can be issued on anyone of the grounds enumerated as Clauses (a), (b) and (c) of Section 11. Clause (a) deals, inter alia, with the situation where the wife is alleged to be leading the life of a prostitute and the petitioner husband knows of no person with whom the adultery has been committed. Clause (b) deals, inter alia, with the situation where the name of the alleged adulterer is unknown to the petitioner husband although he has made due efforts to discover it. Clause (c) relates to the situation where the alleged adulterer or adulteress is dead. Therefore, it is the statutory imperative in terms of Section 11 of the Divorce Act that the alleged adulterer shall be impleaded except in cases falling under Clauses (a), (b) and (c).
5. If the allegation is that the wife is leading the life of a prostitute and that the petitioner husband knows of no person with whom the adultery has been committed, the petitioner can be excused, in terms of Clause (a) of Section 11, from making the alleged adulterer a co-respondent. But, of utmost importance is the fact that Clause (b) of Section 11 of the Divorce Act provides, inter alia, that if the 'name' of the alleged adulterer is unknown to the petitioner “although the petitioner has made due efforts to discover it”, he can be excused by the Court from making the alleged adulterer a co-
respondent. The use of the word 'name' in that clause has to be understood in the situational setting and context of that statutory provision. The requirement to be satisfied in answer to that statutory requirement as enunciated herein is the availability of that co-respondent to be served with the process of court and thus being extended the opportunity to meet the allegations which, incidentally, would be against that person as well. Therefore, the phrase “the name of the alleged adulterer or adulteress” in Clause (b) of Section 11 has to be understood as meaning thereby, the identity and necessary ingredients to identify the person, that is to say, the name and address by which a person can be identified and made party to a judicial proceeding. In that view of the matter, if one knows only the name of the adulterer or adulteress, that may not suffice. The provision in Clause (b) of Section 11 would enable a petitioner to plead that the name of the alleged adulterer or adulteress is unknown to the petitioner, only after that petitioner has made due efforts to discover it. This is the emphasis given in that provision by the use of the words “although the petitioner has made due efforts to discover it”. Therefore, the mere assertion of a person that he has not been able to obtain the address of the alleged adulterer or adulteress is by itself insufficient to satisfy the statutory requirement in such a proceeding. Apart from the fact that the view that we take herein is one available on a plain reading of the relevant statutory provisions, the gravity of the allegations of such nature and the primordial need to preserve the sublime institution of marriage dissuade us from taking any other view. One who charges a spouse of having committed adultery with different partners; has to show the identity of such illicit partners; unless, of course, it is shown that the identity of the person or persons who were illicit partners of the spouse charged with adultery is not determinable although the petitioner has made due efforts to discover it.
6. As to what constitutes due efforts to trace the matrimonial offender is always dependent on as to what is the aim for the effort to reach at that person. The effort has to be to reach at the person who is sought to be impleaded as a co-respondent by identifying the address of that person. Due effort in such situations, as the case in hand, would obviously be to ascertain from the jurisdictional revenue and other authorities, including the postal authorities, as to the availability of that person in the locality concerned and thereby reach at the address. We say this in the context of this case because, even going by the pleadings on record, the persons against whom accusation as to adultery is levelled are those stated to be in 'Byson Valley in Idukki District'. The village authority, other revenue authorities, panchayat authorities and postal authorities are seats of statutory institutional governance. They can be approached to find out the availability of such persons in that locality. If such efforts are made, and ultimately; if the petitioner in an application for dissolution of marriage, to which Section 11 of the Divorce Act applies, is unable to discover the address of the person to be impleaded, that could be treated as a situation where the petitioner in such proceeding has made due efforts to discover, but had not been able to find the address of the person. This is the situational interpretation of law in accordance with the Constitution of India and the statutes referred to above.
7. We have scanned the petition for divorce, as filed before the Family Court to satisfy ourselves as to the quality of pleadings to call the wife a prostitute. The word 'prostitute' is not defined in the Divorce Act. There is no pleading in the original petition filed before the Family Court which would disclose the ingredients of an allegation as to the woman being a prostitute, though the word 'hy`nNmcnWn' (prostitute) is used in two or three sentences in a vague manner without containing any attribute as to prostitution. Under such circumstances, we are not able to sustain the finding of the court below that from the acts alleged in the petition it is to be seen that the respondent/wife was leading the life of a prostitute. We vacate that finding.
8. The result of the aforesaid discussion is that the petitioner in the original petition before the Family Court, that is to say, the respondent in this matter, has to furnish the address of the persons who are mentioned in the original petition before the Family Court; or otherwise; has to seek an order excusing himself from impleading such persons invoking the power under Section 11, if he establishes that he has made due efforts to discover it.
In the result, the impugned order is set aside and the respondent who is the petitioner in the original petition before the Family Court is given an opportunity to make due efforts to discover the identity of the persons mentioned in the original petition filed before the Family Court as the adulterers, within a period of six months. If he ultimately files any application to be excused from such impleadment, the court below shall examine whether it is satisfied that due efforts have been taken by him to discover the identity of such persons and decide on such application afresh, without reference to the contents of the order impugned in this original petition. Original petition ordered as above.
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(THOTTATHIL B.RADHAKRISHNAN, JUDGE) Sd/-
(BABU MATHEW P. JOSEPH, JUDGE) //TRUE COPY// P.A TO JUDGE DG