B. Rajendra Vs. Sree Kumari S. - Court Judgment

M.M. Pareed Pillay, J.

1. Revision petitioner is the husband who filed O.P. (HMA) 264 of 1986 against his wife (respondent) on the ground of desertion, cruelty and adultery. Husband filed I.A. 2819 of 1990 to .dispense with the joinder of adulterers as co-respondents. The petition was filed under Rule 11 of the Hindu Marriage (Kerala) Rules 1963. The application was dismissed by the Sub Judge holding that the petition is without any bonafides.

2. In paragraph 9 of the petition it is stated that the respondent is leading an immoral life and she is having voluntary sexual intercourse with other persons. It is further stated that the petitioner had no occasion for any physical contact with the respondent after she deserted him and later on he came to know that she was admitted in the Cosmopolitan Hospital in September, 1985 and that she underwent an operation for aborting illegal pregnancy. In the interlocutory application it is stated that the petitioner made due and deligent enquiries to find out the name and address of the adulterers and despite his best efforts he could not get any information. Counsel for the recision petitioner submitted that the above allegations would amply justify the relief sought in the petition and the Court below erred in dismissing it.

3. Rule 11 (d) enables the petitioner to dispense with the joinder of the adulterer as co-respondent in certain cases. Joinder of the adulterer as a corespondent can be dispensed with under any of the following grounds:

(1) that the name of such person is unknown to the petitioner although he has made due efforts for discovery.

(2) that such person is dead,

(3) 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 ; and

(4) for any other reason that the Court may deem fit and sufficient to consider.

The above conditions are not cumulative and so if any of the conditions is satisfied the Court can dispense with the joinder of the adulterer as a respondent.

4. Counsel for the respondent submitted that the petitioner does not have a case that the respondent is leading the life of a prostitute and so Rule 11(d)(iii) has no application. Counsel for the revision petitioner submitted that the averments in paragraph 7 of the O.P. clearly spell out that the respondent is leading a licentious life and merely because the word 'prostitute' is not specifically mentioned in the petition it cannot be said that Rule ll(d)(iii) does not apply. The averments in paragraph 9 of the O.P. pointedly refer to the immoral life of the respondent and it is asserted that she is having sexual intercourse with other persons. In paragraph 7 of the interlocutory application petitioner has stated that he made due and deligent enquiries to trace the adulterers and it proved futile. In paragraph 4 of the application it is specifically stated that he could not gather information about the names and addresses of the persons with whom the respondent had voluntary sexual intercourse and so he could not implead them in the array of the respondents.

5. Even if respondent's contention that there is no specific allegation that she is leading the life of a prostitute and so Rule 11(d)(iii) is not applicable is accepted, the petitioner cannot be denied of the benefit of Rule 11(d)(i) in view of the averment in the application that despite petitioner's diligent efforts he could not ascertain the names of the adulterers. The Sub Judge dismissed the petition as the suspected date of adultery and the likelihood of the respondent having adulterous life with strangers were not stated in the petition. The learned Sub Judge also held that the allegation of adultery can only be untrue and as such the petition is without any bonafides.

6. While considering the application under Rule 11(d) the Court is concerned only with the averments in the affidavit. Where there is sufficient allegation to attract Rule 11 (d) Court cannot probe into the merits or demerits of the case as its function is confined to the consideration of dispensing with the joinder of the adulterer. At this stage Court is concerned .only with the averments in the application and not the defence contentions.

7. Even if it is held that there is no specific allegation that the respondent is leading the life of a prostitute so as to invoke Rule 11(d)(iii) petitioner's claim that it would come under Rule 11(d)(1) cannot be brushed aside. In view of the allegations attracting Rule 11(d)(l) it has to be held that the Sub Judge erred in dismissing the application.

8. The Order in I.A. 2819 of 1990 is set aside. I.A. 2819 of 1990 stands allowed. The Civil Revision Petition is allowed.