1. By order dated 27-8-2001 the District Judge Cachar, Silchar, on the petition filed by the husband Shri Ajant Bhuiya against his wife Smt. Lalrinmawii Khaingte for grant of decree of divorce, declared the marriage solemnized between the plaintiff (husband) and Respondent (wife) on 21-12-85 as dissolved under Section 14 of the Indian Divorce Act (hereinafter called the Act). This matter has been placed before this Full Bench under Section 17-A of the Act for confirmation of the declaration of the marriage as dissolved as ordered by the trial Court on 27-8-2001.
2. In the petition, which was filed by the husband, which is dated 6-11-2000, it was averred as under in paragraphs 5 and 6 :
"5. That since 1994, the petitioner has been staying at Guwahati for medical care with frequent visits to Calcutta for medical check up. The petitioner and the respondent have been staying separately since June, 1997 i.e. for more than three years due to irreconcilable differences between them. The petitioner has been staying at Guwahati with visits to Calcutta for health reasons and the opposite party/respondent is holding a permanent job at Aizawl.
6. That the petitioner states that there is no further chances of reconciliation of the differences between him and the opposite party Respondent and they have been advised by family elders to separate honourably. Further the petitioner is unable to shift to Aizawl due to his health condition and the respondent too is unwilling to leave her government job and shift permanently to Guwahati."
It is apparent from the aforesaid pleadings that the divorce was being sought by the husband on the ground of alleged desertion by the wife.
3. It may be observed here that the Respondent (wife) did not appear before the trial Court despite service and she was ordered to be proceeded against ex parte. During the course of the proceedings before the trial Court an application under Order 6, Rule 17 of the Code of Civil Procedure was made by the husband for permission to amend the pleadings by addition of the following paragraph as paragraph 5(a) in the main petition. Paragraph 5(a) reads as under :--
"5(a) That since January, 1999, the defendant has been living in adultery having illicit relation with the above-mentioned Mr. Laldin Gugheta Tochhawng, an Inspector of Taxes at Aizawal under the Govt. of Mizoram. Now they are living as husband and wife without any legal marital status. While the defendant is living in adultery having illicit relation with the above-mentioned person, there is no chance of reconciliation between the plaintiff and defendant. As such, the marriage should be dissolved by a Decree of Divorce as prayed for."
The said application was allowed on 31-7-2001 and the aforesaid paragraph was allowed to be incorporated in the petition for divorce. On the same date ex parte evidence was recorded by the trial Court. In the order dated 27-8-2001, the trial Court observed as under :--
"..... After filing of the suit, the plaintiff came to know that the respondent has been living an adulterous life for last two years with one Mr. Lalding Ngheta Tochhawag of Aizawl and they are living now as husband and wife without any legal marital status. As such, the plaintiff prays for a decree of divorce under the Indian Divorce Act. ....."
"The plaintiff is examined on oath. It appears that the plaintiff has substantially supported the petition on all material particulars. Moreover, after filing of the suit, the plaintiff came to know that the respondent is leading an adulterous life with one Lalding Nghota Tochhawng of Aizawl and both of them are now living as husband and wife.
So, apparently it is manifest that the respondent has been leading an adulterous life and this has been proved by the evidence of the plaintiff. As such and in view of above, a decree declaring the marriage solemnised between the plaintiff and the respondent on 21st December, 1985 is passed and the marriage is dissolved with effect from today under Section 14 of the Indian Divorce Act."
4. It will be apparent from the above observations of the learned trial Court that the marriage has been declared dissolved under Section 14 of the Acton the ground of adultery. However, we find that after the amendment was allowed by the trial Court allowing the applicant to incorporate paragraph 5(a) (supra) in the petitioner, the alleged adulterer was not made a co-respondent which is the requirement of Section 11 of the Act, which reads as under :--
"11. Adulterer to be co-respondent.--Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court :--
(1) that the respondent is leading the life of a prostitute, and that the petitioner knows 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."
5. Since the finding of adultery has been recorded without impleading the adulterer as a co-respondent and the marriage has been dissolved on the ground of adultery, we find that the same is against the mandatory provisions of Section 11 of the Act and therefore cannot be legally sustained.
6. For the foregoing reasons, we set aside the judgment and order of the learned District Judge dated 27-8-2001 and remand the case to him to proceed afresh in the matter after impleading the alleged adulterer as a co-respondent and after serving notice on him. The address of the alleged adulterer would be provided by the applicant. After the alleged adulterer is impleaded as a parry and he is served, the trial Court will thereafter proceed in accordance with law. As a matter of abundant caution, we may observe here that Respondent (wife) will also be required to be served again, inasmuch as, when she was ordered to be proceeded against ex parte there was no allegation of adultery in the petition. The evidence already recorded on behalf of the plaintiff-applicant would be read in evidence subject to the cross-examination, if any, on behalf of the Respondent (wife) and the alleged adulterer who would be impleaded as a party. In case the wife and the alleged adulterers appear in response to the notice that may be served now by the trial Court, both or any one of them choose to file written statement to the petition. Needless to mention that not only the applicant would be allowed to file replication but also would be allowed to lead additional evidence. Further the respondents would also be allowed to produce evidence.