Govindan Nair, C.J.
1. This is auappeal by the husband from the order passedby the Additional District Court, Mavelikkaradismissing his petition under Section 10 ofthe Indian Divorce Act (for short the Act)praying that his marriage with the respondentmay be dissolved on the ground that his wifehas, since the solemnisation thereof, beenguilty 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. (The portion in Malayalam is transliterated in English--Ed.)
'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 ethruka-kshi 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 ethrukakshi-yude kamukanmar liangika bandathinayum mattum divisam fix eheythukondu ezhuthiyi-ttulla chila ezhuthukal ethmkakshi joli nokki-yithulla 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 ari-nhittullathum 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 twopoints (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.
4. The first point was found against the appellant. On the second point after considering the evidence in the case the court came to the conclusion that regarding the case of adultery set up by the petitioner, sufficient, independent raliable evidence was not available but at the same time 'it would appear that the counter-petitioner has been leading an immoral life'. The court also found that it is not unreasonable to infer that the appellant had access to her in July-August 1968. In the absence of clear evidence that there was no such access it was held that it must be presumed that the child born by the middle of March 1969 must be his. The petition was accordingly dismissed.
5. Counsel for the appellant contended that since the case proceeded to trial and the evidence was permitted to be let in the appellant should not have been non-suited at the end of the trial on the ground that there was no specific motion as envisaged by Section 11, at the inception, for excusing him from making the co-respondent a party. The procedure to be followed in such cases is often prescribed by rules and the rules normally provide that there must be motion supported by an affidavit, at the inception. The applicant for divorce will also have to establish that one or the other of the three conditions mentioned in Section 11 of the Act is satisfied. That section is in these terms:
'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'.
6. The requirement of section is not a mere formality. It is based on a matter of grave public importance (William Ferry Bowman v. Harriet Dorothy Bowman) AIR 1942 All 223. The object is to prevent collusion between husband and wife. If Section 11 is not complied with the petition is not maintainable (Susanta Kumar Mitra v. Smt. HimangshuProva Mitra) AIR 1964 Cal 33 (FB). The discretion in such matters exercised by the English Courts is a wider discretion and is not available to the Indian Courts because the discretion of Indian Courts is circumscribed by the provisions in Section 11 (Charles Henry Smalley v. Mrs. Olive Muriel Smalley) AIR 1928 Nag 117. Mere evidence of the husband or wife is not sufficient for the purpose of divorce, has been ruled in P. Joseph v. P. Ramamma AIR 1923 Mad 9 (FB). In CWG Co. v. E. F. Cox, ILR 45 Cal 525 = (AIR 1918 Cal 156 (2)) where the husband was petitioner for divorce but could not name the alleged co-respondents and at the hearing the petitioner applied for leave to dispense with the co-respondents, it was held that the direction for such leave must be by application to file Judge on motion founded on affidavit before the hearing of the petition and it was further held that the court had no jurisdiction to entertain the petition before such leave had been obtained. In Jones v. Jones 1896 p. 165 it was observed:
'Where the relied sought by the petitioner is on the ground of adultery alleged to have been committed with a man, who is alive, and whose name and identity are known, the petitioner must make that person a co-respondent; and the court ought not to excuse him from so doing merely because he finds that he cannot obtain evidence which will prove his case as against that corespondent'.
But this statement was not accepted as a rule to be invariably applied. Lindley, Lord Justice in Saunders v. Saunders 1897 P. 89 referred to the above passage and commented as follows:--
'If I understand this passage correctly it means that, if a husband seeks a divorce from his wife on the ground of adultery, and he knows the name of a person who, he is informed was her paramour, the petitioner must make a co-respondent although he is convinced that he cannot obtain evidence to prove the man's guilt, and although he adduces satis-factory evidence that he really cannot do so. No such role can, in my opinion, be extracted from the statute, nor from the rules promulgated under their authority, nor from previously decided cases. It is, in my opinion, rather opposed to than supported by the course adopted by Sir Cresswell Cresswell, Lord Hannon. See Muspratt v. Muspratt (1861-31 LJPM and A 28) Carryer v. Carryer (1865-4 SW and Tr 94); Jinkings v. Jinkings (1867-1 P and D 330); Bagot v. Bagot (1890-62 LT 612); some cases before Butt J. appear tobe in conflict with these. But the truth is, there is no settled rule applicable to all cases, nor can I see how there should be. The rule laid down in Jones v. Jones, (1896) P. 165 might be well suited to many cases, yet it might in many other cases press very hardly on a petitioner, without being the least necessary for the protection of the public. Such a rule might well be often relaxed where a wife had been living in a brothel, or where she had had a child of which her husband could not have been the father, and the rule would be most mischievous in those common cases in which a wife falsely accuses one man in order to screen another. Instead of following any such rule as that laid down in Jones v. Jones, the Court ought, in my opinion, to apply its mind to each particular case, and, being guided by the statute, the Rules of Court and what experience shows to be dangers to be avoided, the Court should decide what in each case it is most just and expedient to do'.
7. The averments in the petition are wide enough to cover the case that the wife was leading 'the life of a prostitute'. The petition can at least, subject to Section 11. be sustained on the ground that she had committed adultery. One fact that is not disputed is the birth of the child in March or April 1969; March according to the wife and April according to the husband, If non-access is established by the appellant he may be able to get a divorce in a properly constituted petition. The court below has come to the conclusion that there was no sufficient evidence to rebut the presumption arising under Section 112 of the Evidence Act. No doubt the burden is on the appellant to rebut the presumption arising under that section. The question is whether on the facts of the case that burden has been discharged. Perhaps more evidence may be necessary for this purpose. But for a consideration of this evidence there must be a properly constituted petition with the co-respondent on the party array or the petitioner should have been excused on the ground that after 'due effort' he could not discern the name of the respondent. The evidence in the case may not be sufficient to make out that he made due efforts to find out the name of the co-respondent. And the appellant must make up his mind on what ground he would seek to sustain his petition for excusing him from making the co-respondent a party; that the wife was 'leading the life of a prostitute' or she had committed adultery. Though the former will involve adultery the proof required for establishing that is quite different from that for establishing adultery.
8. There is evidence in the case which as the court below has observed indicates that the wife has been leading an immoral life.
9. In the above circumstances we are I faced with the predicament either of upholding the dismissal of the petition or setting aside the dismissal and sending back the case for a proper application being made by the appellant for excusing him from making the co-respondent a party. Considering the weight of evidence already on record which indicates prima facie very bad conduct on the part of the respondent we feel that interests of justice require that the appellant must be given an opportunity to make an application for excusing him from making the co-respondent a party and of establishing his case. We therefore set aside the order and remit the case to the lower court. He will be permitted to adduce fresh evidence if he wants. It will also be open to the appellant if he deems it fit to seek an amendment of the petition in the light of what is stated in this judgment. The respondent of course if she cares will also be permitted to give evidence. The case is disposed of on the above terms. There will be no order as to costs.