M.F. Saldanha, J.
1. The original petitioner is unrepresented before us, despite the fact that office has despatched the notice to him on the address which he himself has indicated in the proceeding. The non-appearance of the petitioner is significant in so far as it is presumed that if the petitioner was interested in the confirmation of the decree that he ought to have been before this Court or that he ought to have been vigilant enough to ascertain as to when the decree would be placed for confirmation before the Court and seen to it that he was duly represented. This has not been done.
2. On the other hand, the respondent-wife is represented before us and we have heard the learned Counsel and he has submitted that this is not a case in which the decree ought to be confirmed. He points out to us that there are certain mandatory requirements under the Indian Divorce Act; the first of them is that in a case where the ground of adultery has been pleaded and the adulterer has been named, that it is a compulsory requirement of law that the adulterer must be cited as a co-respondent in so far as the party against whom the serious allegation of adultery has been levelled must be given notice of the proceedings and afforded a fair opportunity of dealing with that charge. There are certain situations in which the citing of tine co-respondent may not be necessary or situations in which the citing of the co-respondent may be dispensed with by the Court, but the learned Counsel submitted that the present case does not come within either of these two categories. His submission is that in the written statement filed before the lower Court and in the counter-claim that was also filed, the charge of adultery was denied,, but more importantly, the case made out was that it was wholly baseless and unjustified and that the petition could not have been entertained by the Court since there was an express breach of the provisions of Section 11 of the Indian Divorce Act. These contentions were turned down by the Trial Court. The second submission of the learned Counsel as advanced, and one which is of some consequence, is that the charge in this case being one of adultery and particularly in those of the proceedings where the respondent contests the proceeding, that it is absolutely essential that the matrimonial offence be substantiated through adequate evidence of the requisite quality before a Court can pass a decree on that ground. Because of the absence, the evidence was recorded expert in these proceedings and the learned Counsel demonstrates that the matter was virtually treated as an expert proceeding by the Trial Court and a decree was straightaway passed without there having been any substantial material before the Trial Court on merits to sustain such a charge. The learned Counsel points out that even the application for setting aside the decree was turned down by the Trial Court despite it having been pointed out to the Trial Court that the absence of the respondent was inadvertent, as the next day of hearing had wrongly been noted. The learned Advocate has also entered the witness box and given evidence in support of this plea, but to no avail.
3. The record that is before us substantially justifies the aforesaid submission advanced by the respondent's learned Advocate. It was certainly open to the petitioner or his learned Counsel to have appeared before this Court and to have refuted this contention that there was still sufficient ground for the confirmation of the decree. Unfortunately this has not been done. Having regard to the aforesaid position, we uphold the plea that is canvassed before us which is to the effect that this is not a case in which the decree passed by the Trial Court deserves to be confirmed. Furthermore, we need to point out as a necessary consequence of the first of the two grounds, that the maintainability of the petition itself in law is rendered unsustainable. Having regard to this position, the decree passed by the Trial Court is set aside and the petition to stand dismissed.