V.K.Mohanan, J.
Aggrieved by the judgment dated 10.06.2005 in O.P.(HMA) No.65 of 2005 of the Family Court, Nedumangad, petitioner therein, who is the husband of the respondent, has preferred this appeal since the court below rejected his prayer for divorce.
2. Heard Shri T.R.Harikumar, learned counsel for the appellant and Shri Suman Chakravarthy, learned counsel for the respondent.
3. Short facts, which led to the filing of the above appeal are as follows:
The appellant and the respondent are husband and wife and their marriage was solemnized on 26.11.1977 and two children were born in the said wedlock. According to the appellant, respondent wife has got illicit relationship with other men and though he tried to dissuade the wife against the said relationship, the same resulted in vain. It is the further case of the appellant that when he warned the respondent that he would make complaint to the Police, she left the appellant with the children and for the last 16 years prior to the date of filing of the original petition she was residing separately. It is also alleged that the respondent filed M.C.No.44 of 1983 claiming maintenance on false grounds. However, court below allowed the petition and the appellant was directed to pay maintenance at the rate of `135/- per month to the wife and the children. Besides this, according to the appellant, the relationship between him and the respondent is estranged and, therefore, he approached originally the Family Court, Thiruvananthapuram by filing O.P. No.585 of 1994, which was transferred to the Additional Family Court, Nedumangad when the same was established and the petition was re-numbered as O.P.(HMA) No.65 of 2005, which now stand dismissed as per the impugned judgment.
4. Resisting the prayer and denying the allegations raised by the appellant, respondent wife has filed objection. While admitting the marriage, she emphatically denied the alleged illicit relationship and the allegation that she deserted the appellant. According to the respondent, when she was residing along with the appellant, he had developed illicit intimacy with one Chandrika and when she questioned the same, on 24.04.1983, she was manhandled and thereafter, he left the house abandoning the respondent and the children. Thereafter, he did not visit the house of the respondent and did not enquire about the welfare of the respondent wife and the children. Therefore, she was constrained to file M.C.Nos.44 of 1983 and 8 of 1985 before the Judicial First Class Magistrate Court, Nedumangad claiming maintenance.
5. During trial of the above case, the appellant himself was examined as PW1 and he had examined one more witness as PW2. Respondent wife herself mounted to the box and got examined as CPW1 and also examined another witness as CPW2. From the side of the respondent, Ext.B1, which is the certified copy of decree in O.S.No.11 of 1986 has also produced as documentary evidence. Court below after having considered the rival contentions and the evidence and materials on record found that the divorce petition itself is not maintainable in view of Rule 11(a) of the Hindu Marriage (Kerala) Rules, 1963 (in short, “the Rules”) since the person, who was alleged to have illicit connection with the respondent has not been arrayed as a co-respondent in the petition. It is also found that it was the appellant, who abandoned the respondent wife and children and the wife is justified in living separately since the petitioner has got illicit connection with another lady. Consequently, the court below rejecting the prayer for dissolution of marriage, dismissed the above petition.
6. Learned counsel for the appellant vehementally argued that the finding of the court below that the appellant has got illicit connection with one Chandrika on the basis of Ext.B1 is incorrect, since Ext.B1 is an ex parte decree. The first point considered by the court below is about the legality of the petition preferred by the appellant without impleading the person who was alleged to have illicit connection or the person with whom the respondent was allegedly in adultery, as co-respondent in the petition. This Court in Ayyapan v. Vasantha (1987 (1) KLT 504) held as follows:
“The question that arises for consideration is as to whether the failure to implead the alleged adulterer is fatal to the petition. It has also to be considered whether he could be impleaded at a later stage. Rule 11(a) envisages that in every petition for divorce on the ground that the respondent is living in adultery or has, after the solemnisation of the marriage, has sexual intercourse with any person, the petitioner shall make such person as co- respondent. This is a mandatory Rule. Rule 11(d) reads:-
“The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of the co- respondent in cases covered by sub-rule (a) above on any of the following grounds:-
(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery.
(ii) that such person is dead,
(iii) that the respondent being the wife is leading the life of a prostitute and the petitioner knows of no person with whom she has committed adultery or has had sexual intercourse,
(iv) for any other reason that the Court may deem fit and sufficient to consider”
Thus the position admits no doubt that in cases not covered by Rule 11(d) it is incumbent upon the petitioner to implead the adulterer as co-respondent. Having not done so when the original petition was filed before the Court and having not filed a petition supported by the affidavit under Rule 11(d), the petitioner cannot at a later stage implead the adulterer as co-respondent.”
Going by the allegations contained in the petition, it can be seen that the specific case of the appellant is that the respondent wife was living in adultery with one Soman. It is also the case of the appellant that when he went to the house of the respondent one day in the year 1973, he found one Soman in the said house and he beat both the said Soman as well as the respondent wife and the said incident was brought to the notice of the brother of the respondent, but he was driven out from the wife’s house. The said allegation clearly shows that one of the grounds raised by the appellant against the respondent in support of his prayer for dissolution of marriage is adultery. Rule 11(a) of the Rules mandates that adulterer shall be a co-respondent in such petition. In the petition, the said Soman is not made as a co-respondent. The lame excuse given by the appellant for not impleading the said adulterer as a co-respondent is that the appellant was not aware of his address. The above explanation is not sufficient to justify the mistake committed by the appellant in not impleading the adulterer as a co-respondent in the petition for divorce on the ground of adultery. So the trial court is fully justified in its finding. According to us, the above reason itself is sufficient to dismiss the present appeal.
7. It is also relevant to note that according to the appellant, the respondent wife left him with the children on 24.04.1983, whereas the case of the respondent, particularly the deposition of the respondent, who is examined as CPW1 shows that the appellant abandoned herself and the children on 24.04.1983. So the above admitted facts of both sides show that the appellant as well the respondent were residing separately way back from 24.04.1983. Thus the court below considered who among the disputed parties responsible for living separately. Court below after having considered the case of CPW1, the respondent wife found that she is justified in residing separately since the appellant was living with another woman, viz., Chandrika. The evidence of CPWs 1 and 2 positively proved the said fact. Besides the above, Ext.B1 decree in O.S.No.11 of 1986 shows that the said Chandrika approached the Munsiff’s Court, Varkala for a declaration that she is the legally weded wife of the appellant. In the light of Ext.B1 decree and in view of the evidence of CPWs 1 and 2, it can be seen that in fact the appellant was leading an immoral life, who got illicit intimacy with another lady and, therefore, the respondent wife is justified in living separately. Therefore, the contention of the appellant that the respondent wife deserted him is baseless and incorrect and the court below is absolutely correct in rejecting the allegation of the appellant.
In the light of the above discussion and the evidence and materials on record, we are of the opinion that the trial court is fully justified in its finding and declining the prayer for a decree for dissolution of marriage on the ground of adultery and desertion. Therefore, there is no merit in the appeal.
Accordingly the above appeal stand dismissed.
V.K.MOHANAN, JUDGE.
A. HARIPRASAD, JUDGE.
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