S.N. Shankar, J.
(1) This is an appeal by the wife (hereafter called 'the appellant') from the order of the Additional District Judge dated April 30, 1968, granting a decree of divorce in favor of the husband (hereafter called 'respondent No. 1') under section 13(1)(i) of the Hindu Marriage Act, 1955 (hereafter called 'the Act').
(2) The parties are Hindus by religion. They were married at Lahore on May 3, 1943. Three children were born to them out of the wedlock, the oldest being a son Ravi Kumar aged 22 years at the time when the petition was filed, the second being a daughter Veena who it is admitted between the parties, has since been married, and the third is a son Ravinder Malhotra, who is still a minor. After the partition of the country, the parties migrated to India and lived together as husband and wife at different places including Delhi. In June, 1966, respondent No. 1 filed a petition under sub-section (1) of section 13, clauses (i) and (iii) of the Act with the allegations that in March, 1962. the wife left him and started residing, according to para 26 of the petition, with one Bhupinder Singh Gujral, according to para 32 of the petition, in the year 1963 she was often seen in the company of one Dayal Singh Tailor and according to para 34, she was thereafter residing with one Ram Dutt Pukhuja. It was further alleged that she had been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. The petitioner further stated that a decree for judicial separation had been passed between the parties by the City Civil Court at Bombay on November 16, 1955, and that ever since the passing of the decree the marital relations between the parties could not be resumed due to the unsoundness of mind and the behavior of the wife. The respondents imp leaded in the petition were the wife as respondent No. 1 and one of the adulterers Ram Dutt Pukhuja as respondent No. 2 and none else.
(3) The allegations in the petition were strongly denied by the respondents and on the basis of pleadings before him the learned trial court framed the following issues:-
'(1)Whether respondent No. 1 has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of this petition Opp (2) Whether the Respondent 1s living in adultery Opp (3) Relief.
(4) After going through the evidence and hearing the parties, the learned court came to the conclusion that the allegation of the wife being of incurably unsound mind was not proved but the husband had succeeded in proving the charge of adultery against the wife and that there was no reason why the relief of divorce prayed for should not be granted to him. The petition was, thereforee, accepted and a decree for divorce dissolving the marriage on the ground of adultery was granted in favor of respondent No. 1. It is this order which forms the subject- matter of this appeal.
(5) At the outset the learned counsel for the appellant has raised an objection that the husband in this case had not complied with rule 10 of the Rules framed by the High Court in exercise of the powers conferred on it by section 21 of the Act and had not imp leaded all the alleged adulterers as co-respondents and his application, thereforee, was incompetent and should have been dismissed by the trial court and this appeal now deserves to be accepted on this short ground . Rule 10. referred to by the learned counsel, reads as under:-
'10.Petition on ground of adultery. Adulterer to be imp leaded as party.-Upon a petition presented by a husband for divorce on the ground of adultery, the petitioner shall make the alleged adulterer a co-respondent. The petitioner may, however, be excused from so doing on any of the following grounds with the permission of the Court - (a) That the Respondent 1s leading the life of a prostitute and that the petitioner knows of no particular person with whom the adultery has been committed; (b) that the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to discover the same; (c) that the alleged adulterer is dead.'
(6) The word 'adulterer' used in singular in this rule will include the plural of this word also (vide section 13 of the General Clauses Act) with the result that in case of a petition filed on the ground of adultery where adultery is alleged with more than one person, the petitioner is bound to implead all the adulterers as a party to the petition. The use of the word 'shall' in this provision further makes it clear that this requirement is mandatory. The reason for it appears to be obvious. It is the basic principle of jurisprudence that no person shall be condemned unheard. In the case of a petition for divorce on the ground of adultery the petitioner does not seek any direct relief against the adulterer but the character, and conduct of the alleged adulterer is very much before the court and the court is called upon to pronounce judgment over it. In keeping with the principles of natural justice the adulterer should, thereforee, be a party to these proceedings and this is what the rule has provided. A petition framed in disregard of this rule is defective and should not be allowed to be proceeded with and should be rejected by the trial court unless the petitioner claims to be excused from implesding the adulterer specifically on the grounds mentioned in clauses (a), (b) and (c) of the rule.
(7) The position in this case, however, is slightly different. Out of the three persons Bhupinder Singh Gujral, Dayal Singh Tailor and Ram Dutt Pukhuja named inparas 26, 12 and 34 of the petition who it is conceded before me were all adulterers according to the petitioners he had imp leaded Ram Dutt Pakhuja one of the alleged adulterers as respondent No. 2. There was thus compliance with rule 10 to the extent of his case of adultery of the wife with this person was concerned and it could validly be the subject-matter of decision by the court in these proceedings. Pakhuja took full part in the proceedings and was afforded full opportunity to defend his interest. If on the evidence produced on the record allegations of his adultery with the wife are borne out, there can be no reason to refuse the relief that the husband would be entitled to on that basis. On the analogy of Order 1, rule 9 of the Code of Civil Procedure, the learned counsel for respondent No. 1 argued that, I think, rightly that it was open to the court to deal with the controversy before in so far as it related to the parties actually imp leaded it was open to the respondent to take the objections in regard to the frame of the petition and the non-impleading of the other adulterers known to the husband when he filed the petition, but it is conceded before me that no such objection was taken by them in the trial court. Under these circumstances, it is not possible to accept the contention of the learned counsel for the appellant that in the facts of this case the court below was not competent to proceed with the petition for divorce on the ground of adultery and that the appeal should now be accepted on this short ground.
(8) The learned counsel for the appellant than contended that in granting the divorce and in arriving at the conclusions recorded in the judgment, the learned court below had also taken into consideration the alleged adultery of the wife with one Makhan Lal, who was neither a party to the proceedings nor was even named in the petition and, thereforee, the whole order was vitiated. It is correct that the impugned order does record this finding on the basis of certain evidence adduced in court. For reasons that I have already stated, having regard to the mandatory provisions of rule 10 of the Rules framed by the High Court under section 21 of the Hindu Marriage Act, 1955, there is no escape from the conclusion that the part of the evidence is wholly irrelevant for the decision of this case. This evidence should not have been allowed to be adduced on the record and cannot be looked into for decision of the controversy. The finding of the alleged adultery with Makhanlal has thereforee to be ignored but this finding is independent and separable from the finding of adultery with respondent No 2. If the latter finding is sustainable in law on the facts of this case the whole order cannot be struck down as vitiated. It is, thereforee, not possible to sustain the submission of the learned counsel that the impugned order for this reason suffers from such an infirmity that it deserves to be quashed. Coming now to the merits of the case, the only question to be examined is whether the husbandhas succeeded in proving the allegations of adultery of the wife with respondent No. 2. As the other alleged adulterers known to respondent No. 1 on the date when he filed his petition were not imp leaded and they had no chance of being heard, no evidence of adultery qua them would be relevant for purposes of decision of this case.
(9) The only independent evidence relied upon in support of the adultery of the wife, with respondent No.2 is that of Pandit Brahm Dutt P. W. 3 and Shiv Lal Public Witness 6. Public Witness 3 has stated that he knew the appellant and respondent No. 2 and that he had acted as a broker in arranging the letting of a 'barasati' of a house in south Extension, New Delhi to the latter in November, 1965 and that at that time the appellant accompanied (respondent No. 2) and that he saw them residing together in that house again when he visited it nearly 15 days later. The witness has not stated that he had been going to that house generally and that he had been seeing both the respondents living together all through. He is further only a property broker and has not been able to give any satisfactory account of the alleged transaction claimed to have been brought about through him. He has stated that the respondent No. 2 paid three months' rent in advance, but no rent deed was executed nor was any receipt of rent passed on to Respondent No 2 in his presence in token of the payment. He has further admitted that at the time when the transaction was finalised, another broker R. O. Digchist was also present on the spot but this person has not been produced in court. P. W. 6 Shiv Lal the other witness has deposed to the appellant and respondent No. 2 having lived together in F. 246, Gutarn Lines, Kingsway Camp, Delhi, for five months. This house, it is not disputed, is the house where the family of respondent No. 2 resided. It is inconceivable and cannot readily be accepted that the respondent No. 2 lived with appellant in this family house as his wife along with the rest of his family members including his parents. To make the story plausible the witness stated that the father of respondent No. 2 quarrelled with the said respondent on that account, but made his version still more difficult for being accepted when he stated that respondent No.2 then constructed a Kothri behind the same house in which he shifted along with the appellant. Apart from the evidence of these two witnesses there is no other evidence on the record that the learned counsel for the husband could call in aid to support the finding of adultery recorded by the learned trial court except the bald allegations of the husband himself. It is true that there can hardly be a direct evidence of adultery, but the proof of this matrimonial offence has to be as strict as that required in criminal proceedings. Though it is also true that adultery invariably is a matter for inference from the surrounding circumstances, but the evidence has to be something going beyond more suspicion and should be sufficient to satisfy the judicial conscience of the court that the circumstances proved point to no other plausible inference. The court would not be justified to draw this conclusion unless the facts relied upon are not reasonably capable of any other Explanationn whatever. Each case in this respect has to be decided on its own facts. The learned counsel for the appellant argued that respondent No. 1 in this case did not even know respondent No. 2 by face and his evidence and allegation that the appellant was openly living with him in adultery cannot be accepted without a pinch of salt. There appears to be some basis for this submission. After the petition was filed, when the respondents were not served for July 28, 1966, which was the date fixed for hearing in court, fresh notices were directed to be issued to them for August 30, 1966. On this date respondent No. 2 was served and he personally appeared in court and his presence is recorded in the proceedings of that date, but because respondent No. 1 was not served the case was adjourned to September 26, 1966, for her service. On the adjourned date respondent No. 1 filed an affidavit that the person who appeared in court on August 30, 1966, was not respondent No. 2, Ram Dutt Pakhuja, but was his brother Sham Dutt Pakuja. As respondent No. 2 again happened to be present in court at the time of hearing, the learned trial Judge asked him to put down his signatures and thumb-impression there and then on the proceedings of that day. It is not denied before me that they are the signatures and thumb-impression of respondent No 2, This does show that Respondent No. 2 was present in court on August 30, 1966 but the husband respondent No. 1 did not recognise him by face even till as late as September 26, 1966. The learned counsel for the appellant contended that occasion for filing the affidavit by Respondent No. 1 disputing the identity of Respondent No. 2 was that Respondent No. 2 was a lad of 21 or 22 years of age at that time and when he appeared in court respondent No. 1 felt that it was a little difficult to imagine his living in adultery with the appellant who was comparatively of an advanced age and, thereforee, tried to take this stand. Whatever may have been the reason that prompted respondent No. 1 to make this affidavit, the fact remains that the allegations in paras 34 and 35 of the petition, verified to be true from the knowledge of the husband respondent No. 1 that the appellant had been living with Ram Datt Pakuja at F-12 New Delhi South Extension till February, 1966 and at Ambedkar Colony Sarai Rohilla till April, 1966 and that she was still living with him when the petition was filed have to be scrutinised with extreme caution. In para 35 the age of this adulterer was stated to be about 32 years where as respondent No. 2 even when he appeared in court as his own witness on April 25, 1968 was only 24 years old. All this raises a good deal of doubt about the case set up in the petition. The learned counsel for respondent No. 1 was unable to give any satisfactory Explanationn for these glaring lapses on the part of his client. Respondent No. 2 appearing as his own witness in court has stated that the relations between him and the appellant are those of mother and son and that his mother is the 'Gur Bahen' (sister being disciple of the same Guru) of the appellant and that he has been looking after her as his mother. There is nothing on the record to prove this adoption of Respondent No. 2 but there is other evidence on the record to explain this claim for filial affection. It is evidence that the relations between respondent No. 1 and his wife (the appellant) were very very strained. Both of them were previously residing in a house in Dev Nagar, but thereafter respondent No. 1 shifted and the appellant alone contrived to live in this house in October, 1964 according to respondent No. 1 (as Public Witness 10), she left this house and removed all his household effects, which were by no means small and consisted of a truck load of goods according to him, and came to live in the house where respondent No. 2 with his parents and other members of the family was residing. To me, it appears that it was this truck-load of goods which prompted respondent No. 2 and his family to accept the appellant in the house. There is no other Explanationn on the record otherwise why the family of respondent No. 2 should have suffered the appellant to live there and why respondent No. 1 should have confused respondent No. 2 with his brother in the affidavit referred to earlier. The learned counsel for respondent No. 1, however, argued that if that was so, respondent No. 2 should have been straight off admitted that the appellant lived with him in the house and should not have been at pains to cancel this fact. This argument overlooks the aspect that such an admission could have involved not only him (Respondent No. 2) but his family also in other complications in so far as the household goods were concerned. In the peculiar facts of this case, thereforee, the mere living together of the appellant and respondent No. 2 does not justify the inference of adulterous relations between them to prove the matrimonial offence of adultery.
(10) The learned counsel for the husband then placing reliance on Rajani Prabhakar Lokur v. Prabhakar Raghavendra I okur and another : AIR1958Bom264 argued that even if the case of adultery under section 13(1)(i) was not found to beestablished, respondent No. 1 was till entitled to the relief of judicial separation under section 10(1)(f) of the Act. He also relied on Bhagwan Singh Sher Singh Arora v. Amur Kaur A. I. R. 1962 Pun 144 in support of the same proposition. It is correct that if on the facts found by the court, the plaintiff is found to be entitled to a lesser relief than the one claimed by him, it would be competent for the court to grant it but for reasons aforesaid I am unable to hold that with the evidence on record, respondent No. I has been able to prove that after the solemnisation of his marriage his wife had sexual intercourse with any other person to bring the case within the ambit of clause (f) of Section 10(1) of the Act. It is, thereforee, not possible to accept this submission.
(11) On fact, however, is clearly proved on the record and that is that the appellant has deserted respondent No. 1 and has not been residing with him and discharging her marital duties for a period of over two years before the presentation of the petition and even now has been living separately. The relations between her and. respondent No. 1 are more than strained and it is not possible for them ever to come together. This aspect of the case was specifically pointed out to the learned counsel for the appellant and he frankly conceded that in the facts of the case he had nothing to say in answer to this charge. Order 7, rule 7, of the Code of Civil Procedure specifically authorises the court to grant such relief as it may think to bejust on the facts proved in a given case so long as the relief granted is not inconsistent with the relief originally prayed for. In this view of the matter, thereforee, having regard to the evidence on the record. I grant a decree for judicial separation in favor of respondent No. 1 under section 10(1)(a) of the Act.
(12) In the result, thereforee, this appeal is accepted but to the extent that instead of a decree for divorce, a decree for judicial separation under section 10(1)(a) of the Act is granted in favor of respondent No. 1 against the appellant. Having regard to the facts of the case the parties are left to bear their own costs throughout.