IDICULA JACOB Vs. MARIYAMMA
HIGH COURT OF KERALA
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Govindan Nair, C.J. -
(1.) This is au appeal by the husband from the order passed by the Additional District Court, Mavelikkara dismissing his petition under Section 10 of the Indian Divorce Act (for short the Act) praying that his marriage with the respondent may be dissolved on the ground that his wife has, since the solemnisation thereof, been guilty of adultery.
(2.) In the petition the appellant averred that he last resided with the respondent in her house for two months in August 1967 when he came on leave, and immediately afterwards they resided together in the petitioner's house for a few days and thereafter the appellant returned to his place of work. He is in the Armed Forces and has been serving outside the State. There is the further averment that when he came on leave in June 1968 he did not find his wife and child in his house and he learnt that the respondent was leading an immoral life and that when she was questioned she denied it. He returned to his place of work. There is a specific assertion that after the appellant stayed with his wife till the 10th October 1967 when he was on leave he had never lived with, his wife as husband and wife even for a day. It is said that when he came on leave on the 6th August, 1969 to his house he learned that a child was born to his wife due to her immoral conduct and that she gave birth to the child at the Victoria Hospital in Quilon. The allegations in paragraphs 6, 7, 8 and 9 may be extracted. ..(Text in Varnacular is transliterated in English)..
"6. Ethrukakshiye haragikkasan Vivaham kazhikannathennu mumbu muthalkey dur-marga jeevithakkariyayirunnu ennum Kerala-thinde pala bhagangalilum jara kooltukettukal ullathayum ariyunnathinndayayithullathuma-kunnu. Udyogartham harajikkaran veligil tha-masikkenda chultupadukalil a yirunnathinal ethrakakshikku anya purushanmarumayulla a vihitha bandhathe patti harajikkarannu adutha kalam vareyum ariyunnathinnu Sadhi-kkathe Vennittullathanu. Ethrukakshiee kala-yalavu Kalilellam pala parushanmarumayi nirandaram vyabhichara Krithyathil expethe jeevichu Vannathayum aa nilayil thudarnukon-dinkkunnathayum harajikkaranu Vyakthamayi ariyunnathinnu ippol matbram edayayittulla-thum ennal Vyabhichara krithyangalil erpetti-ttulla divasangal. Oronnum prathyekam prath-yekam parayuvan harajikkarannu nivruthiyilla-thumakunau. 7. Pala Sannarbhangalilum palarumayi ethmkakshi avihitha vezhchayil erpetta Vya-bhichara Kultangal nadathiyi ttullathayi Wa-kthamaya thelivukal moolam pidikkapettithe-llathum ethrukakshi joli nokkiyittulla Vidya-bhyasa sthapannangalil ninnum appozhappol ittu karanangalil ethrukakshiye paranhu vitti-ttullathumanuee vaka karyangal ethe paranhu paschathapikunna thayum kanichu ethrukakshi harajikkarande perku 1968 December 18 am theeyathi ezluthiyittellathumakunnu. Ethmkakshi joliyilireekey thudarehayayi avihi-thabhandary pularthikkondirinna Veroru alu-mayi 1968 December 14 am theeyathi rathri-yil alappuzha pathirapalli aspathrikku Samee-pam vechu laingika bandathil espedunnathinnu udyanukkave alappuzha policilninnum arrest chethu ethrukakshiye akstadiyil vechittulla-thumakunnu. Palayidathuninnum ethrukakshiyude kamukanmar liangika bandathinayum mattum divisam fix eheythukondu ezhuthiyi-ttulla chila ezhuthukal ethmkakshi joli nokkiyithulla sthapanangalile adhikridhar appozhappol ethrukakshiyude ezhuthukal Censure Cheytha koottahil pidichittullathum ayathu purakaley hajarakki kollavunnathranakunnu. 8. Harajikkaranum ethrukashiyude melvivaricha prakaram pala vidhathi-lum pala avasarangililum ulla anasa-syamaya nadapadikalum vyabhichara kut-tangalum Sambandichulla poornamaya viva-rangal harajikkarande ippolathe joli Sthalam-ayyu Jodhpuri Vechu 1968 Decemberil math-ram vyakthamayum viswasayogyamayum arinhittullathum appol avadhi kittathirunnathinal sthalathu vannuchermau harajikkaranu venda nadapadikal edukkunnathinnu Sadhikkathe vannithellathum 1969 August 6 am theeyatbi mathram Sthalathu vannu cherunnathmnu idayayittullathumakunnu. Koodathe manabha-yathal Sthithigathikal angeyattam vashalakke-nda ennulla udyesathilum avadhikku veettil vannathinnu Seshavum vendathu Cheyyame-nnu theemmanichathinalum anu ee haraji ippol bodhippikkunnathu. 9. Ethrukaksbi vesyajeevithathil Muzhuki adikkadi nasicha jeevithathil thanne mumbothe pokunnathinalum ethrukakshiyumayi Vyabhichara krithyathil erpedunnathu prathyekam oru vyakthithamallathathinalum aaveyum Corespondent ayi Kakshi cherkathirikkunnathu-makunnu."
(3.) In the petition no one was therefore impleaded as co-respondent. The averments in the petition were denied by the respondent. No leave was sought for or granted as required by Section 11 of the Act The case went to trial and the appellant examined himself and 7 other witnesses and produced Exts. P-1 to P-12. The respondent did not give any evidence. The court framed two points (1) whether the petition is not maintainable for non-compliance of Section 11 of the Divorce Act IV of 1869 and (2) whether the allegation of adultery made by the petitioner against his wife is true.;
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