Raju Vs. Mary

Raju vs Mary

Type Court Judgment Court Kerala Decided Dec 09, 1999

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Citation: sooperkanoon.com/732120
Court: Kerala High Court
Judge: Arijit Pasayat, C.J.,; K.K. Usha and; K.S. Radhakrishnan, JJ.
Decided On: Dec 09, 1999
Case Number: C.M.R. No. 54 of 1999
Subject: Family

Case Summary

AI-generated summary - not the official court judgment text.

- LAND ACQUISITION ACT, 1894.[C.A. No. 1/1894]. Section 49: [J.B.Koshy, A.K.Basheer & K.P. Balachndran, JJ] Acquisition of part of house or building Claim put forward by owner to acquire entire building Held, Option under Section 49(1) is to be made by the owner of the house or building when part of the building i...

Key legal issue: Family
Acts & sections: Divorce Act 1869 - Sections 11

Parties & Advocates

Appellant / Petitioner

Raju

Advocate C.S. Ullas, Adv.

Respondent

Mary

Advocate None

Legal References

Acts: Divorce Act 1869 - Sections 11
Reported In: II(2000)DMC107

Excerpt

.....desire should be clear for acquisition of the entire building. the above expression of opinion should be made before passing of the award. the owner of the building has a right to withdraw the option exercised before passing of the award. if the option of the owner to acquire the entire building as provided under section 49(1) is accepted by the land acquisition officer, tenant cannot challenge that decision. if the desire exercised by the owner to acquire the entire building is not acceptable, the only option for the land acquisition officer is to withdraw from the acquisition. -- section 49 (1): acquisition of whole of such house or manufactory or building meaning held, the words whole of such house or manufactory or building includes land in which it is situated. in other words, when entire building is acquired, the land in which the building is situated also has to be acquired by the government; if the owner expresses his opinion only to acquire the building materials excluding the land in which it is situated, it is not an option exercised under section 49(1). - it was stated that inspite of best efforts, the name of the alleged adulterer could not be known. ' 3. in the case at hand, an application was filed before the learned trial judge taking the stand that inspite of best efforts the name of the alleged adulterer could not be known, and that due efforts have been made to discover it, but without any result. in the case at hand, learned trial judge was satisfied that due efforts had been made to discover the name of the alleged adulterer, but without any result......marriage, petition filed under section 10 of the indian divorce act, 1869 (in short 'the act') was disposed of the by learned judge, family court, ernakulam, granting a decree of divorce. reference has been made to this court, as required under - section 17 of the act. petitioner filed the petition alleging that his wife was leading an immoral life and was living in adultery. it was stated that inspite of best efforts, the name of the alleged adulterer could not be known. the foundation of the claim of adultery was that the respondent refused to have sexual relationship with him. but notwithstanding lack of sexual relationship between them, a child was born to the respondent, and it is sufficient to show that she was living in adultery. respondent remained ex parte during trial. learned trial judge accepted the evidence tendered by the petitioner and held that the respondent was living in adultery.2. when the matter is taken up, none appeared for the respondent. section 11 of the act mandates impleadment of the alleged adulterer as co-respondent. however, petitioner can be excused from doing soon one of the following grounds, if allowed by the court:'(1) that the respondent is leading the life of a prostitute, and that the petitioner know of no person with whom the adultery has been committed;(2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;(3) that the alleged adulterer is dead.'3. in the case at hand, an application was filed before the learned trial judge taking the stand that inspite of best efforts the name of the alleged adulterer could not be known, and that due efforts have been made to discover it, but without any result. the object of section 11 being the prohibition of any form of collusive divorce, as a matter of course and mere formality, presence of the co-respondent cannot be dispensed with. the party applying for exemption has to satisfy the court that all possible efforts.....

Full Judgment

Arijit Pasayat, C.J.

1. By accepting prayer for decree for dissolution of the marriage, petition filed under Section 10 of the Indian Divorce Act, 1869 (in short 'the Act') was disposed of the by learned Judge, Family Court, Ernakulam, granting a decree of divorce. Reference has been made to this Court, as required under - Section 17 of the Act. Petitioner filed the petition alleging that his wife was leading an immoral life and was living in adultery. It was stated that inspite of best efforts, the name of the alleged adulterer could not be known. The foundation of the claim of adultery was that the respondent refused to have sexual relationship with him. But notwithstanding lack of sexual relationship between them, a child was born to the respondent, and it is sufficient to show that she was living in adultery. Respondent remained ex parte during trial. Learned trial Judge accepted the evidence tendered by the petitioner and held that the respondent was living in adultery.

2. When the matter is taken up, none appeared for the respondent. Section 11 of the Act mandates impleadment of the alleged adulterer as co-respondent. However, petitioner can be excused from doing soon one of the following grounds, if allowed by the Court:

'(1) that the respondent is leading the life of a prostitute, and that the petitioner know of no person with whom the adultery has been committed;

(2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;

(3) that the alleged adulterer is dead.'

3. In the case at hand, an application was filed before the learned trial Judge taking the stand that inspite of best efforts the name of the alleged adulterer could not be known, and that due efforts have been made to discover it, but without any result. The object of Section 11 being the prohibition of any form of collusive divorce, as a matter of course and mere formality, presence of the co-respondent cannot be dispensed with. The party applying for exemption has to satisfy the Court that all possible efforts have been made to discover the name of the alleged adulterer. Section 11 makes it obligatory on a husband when he petitions for dissolution of marriage on the ground of adultery to make the alleged adulterer a co-respondent unless he is excused from doing so on one of the three grounds mentioned. Until leave is actually obtained the suit cannot proceed. A formal application has to be made before the trial and it has to be supported by evidence that the conditions of Section 11 have been complied with. Justice and fair play demand that the co-respondent in adultery should also be brought to Court to enable him to set a clean bill should he so deserve. Again the inclusion of co-respondent eliminates the chance of collusion or connivance. Though the section apparently lays down a procedural matter, it seems to have great importance in public policy. In the case at hand, learned trial Judge was satisfied that due efforts had been made to discover the name of the alleged adulterer, but without any result.

4. Having considered the materials brought on record by the petitioner in support of his stand, we are in agreement with the view expressed by the learned Trial Judge. He also recorded a positive finding that there was no collusion between the parties.

The decree is accordingly affirmed and the reference is accepted.

Same Court & Year Kerala · 1999 Same Parties Raju vs Mary Same Subject Family Same Judge Arijit Pasayat, C.J.,; K.K. Usha and; K.S. Radhakrishnan, JJ. Acts & Sections Divorce Act 1869 - Sections 11

Family