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Bench: JUSTICES B. Subhashan Reddy & Ghulam Mohammed


Law Point:
Adulterer necessary party and ought to be made second respondent.





This appeal is directed against grant of divorce to the wife who is appellant herein. O.P. 120 of 1988 was instituted by the husband/ respondent on the file of the Subordinate Judge, Eluru seeking divorce against the appellant herein on the ground of adultery. It was specifically alleged that the appellant has sexual relations with one Misala Satyanarayana who was residing nearby her matrimonial house. Misala Satyanarayana has not been made a party and in fact, it was specifically pleaded by the appellant in her written statement.

2. Even though the said plea was recorded by the lower Court, the lower Court did not concentrate on that aspect at all. In a case for divorce basing on adultery, the adulterer is a necessary party and ought to be made second respondent in the instant case. But, the respondent/husband had failed to implead the alleged adulterer and as such the opposite party is hit by non-joinder of necessary party. We are fortified in our view by the judgment of Allahabad High Court in Udai Narain Bajpal v. Smt. Kusum Bajpai, AIR 1975 All. 94, wherein the Court held as follows :

“Learned Counsel for the respondent also placed reliance on the decision in AIR 1942 All. 223 (supra) for the purpose of contending that till such time as the appellant’s application for amendment of his petition by addition of the alleged adulterers as co-respondents was allowed and the petition was amended accordingly, it was not in accordance with law and not maintain- able. It was urged that till the co-respondents were impleaded it was not open to the Court either to frame issues in the petition or admit evidence on Issue No. 5 and consequently the framing of the issues by the Trial Court as well as the finding on Issue No. 5 are without jurisdiction. There is force in this contention which must be accepted.”

3. That apart, even on merits, there is absolutely no tenable ground for finding that the appellant was living in adultery with the said Misala Satyanarayana. In fact, the plea of adultery was raised by the respondent in maintenance case in M.C. No. 28 of 1988 filed by the appellant in the Court of Additional Judicial First Class Magistrate on her behalf and on behalf of her minor son. The said plea was rejected, but maintenance was granted only to the son and not to the appellant for the reason that the appellant was having Ac. 1.00 land gifted to her by her father at the time of her marriage by way of Pasupukunkuma. In fact that is the crux of the problem as the said land had evoked the entire litigation leading to the divorce proceedings, as the appellant was reluctant and successfully resisted in not succumbing to the illegal demands of the respondent and his mother to sell the said extent of Ac. 1.00 of land for the purpose of investment in his business. The fact that respondent runs Kirana business is not in dispute and that fact that the Kirana business is not feeding fully made him to work part time in a cinema theatre, was expressly admitted by the respondent himself. In view of this, there is ample corroboration that the trouble arose only because the appellant did not concede to the demands of respondent to sell away the one acre land which was given for her sustenance by her father at the time of her marriage. There is absolutely no corroboration for the charge of adultery and in fact the said charge is callous and is absolutely baseless. The respondent did not even say on what date he has seen the appellant with Misala Satyanarayana. Further, it is totally unbelievable that when the respondent and his mother are staying in their house, either Misala Satyanarayana would come to their house at the dead of the night at 1.00 a.m. or appellant would try to leave the Company of the respondent at that dead of night and right in the ground floor they would indulge in illegal cohabitation. That apart, the respondent states that he had condoned the said act of adultery but again she was seen in sexual activity with Misala Satyanarayana later during December, 1988 not by himself but by his mother. This is a very vital factor. This fact could have been proved only by examining the mother by the respondent but it has not been done so. The respondent’s mother is an elderly lady and had an adulterous act being committed in her house and had she seen the same, she would not have kept quite and she would have chastised the appellant and Misala Satyanarayana and she would have made hue and cry, and secondly had she been examined, certainly she would have corroborated the version of her son/respondent. But, she was not examined and the very fact that she was not examined gives rise to a presumption that the allegation of adultery levelled against the appellant is a total falsity and had the mother of the respondent been examined, she would not have supported this allegation and as such she was not examined. This vital aspect was not taken cognizance of by the lower Court and a fallacy has been committed in just recording a finding that the appellant was leading adulterous life with Misala Satyanarayana.

4. Evidence of P.Ws. 2 and 3 does not inspire any confidence. In fact, they are procured by the respondent as they are his immediate neighbours. That apart, P. W. 2 does not even say a word about the adultery in his examination-in-chief but in cross-examination he speaks something without any details, very vaguely and without any basis. We do not understand as to why this kind of suicidal cross- examination was done by the appellant’s Counsel in lower Court. In any view of the matter even the elicitation in the cross-examination would not help the respondent for the reason that they are very vague statements made and the very fact that they were made in cross-examination even though vaguely and not in examination-in- chief would cloud his statement with suspicion that he was stating so in order to accommodate P.W. 1 i.e., the respondent herein. P.W. 3’s evidence is no better and except vaguely saying that he had seen the appellant with Misala Satyanarayana while going in rickshaw he does not say any details about the same i.e., either date, month, year or time. It is not that, in the matrimonial house of the appellant, the appellant was living alone. She was living alongwith respondent, her child and her mother-in-law. It is admitted by the respondent that in his absence, his mother would be looking after the Kirana establishment and that is how continuous presence of respondent or his mother is secured eliminating any untoward act and that too, illegal sexual act on the part of the appellant.

5. Yet another factor which totally disproves the charge of adultery made by the respondent and makes him liar is that, it is stated by him that when he had caught hold of the adulterous act, the appellant swallowed sleeping pills and then he had admitted her in a nursing home where her stomach was washed and discharged. Medical evidence would have been the best evidence to prove the said fact, but the same was not adduced which only goes to show that the allegation of adultery made by the respondent is a blatant lie and the lower Court had recorded an irresponsible finding, that too, in a light hearted manner, which should not be done in a charge of adultery. Casting aspersion against a woman, that she is unchaste woman, that she is unchaste woman, that too a married woman with children, is a very serious thing and unless there is cogent evidence beyond any pale of doubt, such a finding should not be recorded. But unfortunately, the lower Court had recorded such a finding without any legally acceptable evidence.

6. In the circumstances, we set aside the judgment of the Lower Court. Civil Miscellaneous Appeal is, thus, allowed with costs throughout, quantified at Rs. 2,000/- payable by the respondent to the appellant.

C.M.A. allowed with costs.

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