P.B. Mukharji, J.
1. These proceedings have come up before us for confirmation under Section 17 of the Indian Divorce Act. The learned Judge decreed the suit ex parte without costs subject to confirmation by this Court. The petition was by the husband against the wife for dissolution of the marriage.
2. The petitioner examined himself and called his mother as a witness. On that evidence the learned Judge gave the decree as aforesaid.
3. The learned Judge treats this petition as one under Section 10 of the Indian Divorce Act on the ground of adultery coupled with desertion without reasonable excuse for more than two years. Unfortunately he has failed to notice that the word 'adultery' was not even alleged in the petition. Paragraph 5 of the petition says that 'the respondent used to bring people into the house and used to pass nights with them'. That, in our opinion. Is notenough assertion and allegation of the actual act of adultery. Adultery must at least be averred and alleged in the petition under Section 10 of the Indian Divorce Act and reasonably proved. In fact the petitioner in his evidence also uses the same expression, namely, 'my wife used to bring young men into the house and spend nights with them.' It is true that towards the end of his evidence he says that he had not condoned the 'adultery' and that his application was not collusive. But then before any question of condonation of adultery arises it must first at least be alleged and then proved. That has not been done on the records before us. All that the petitioner's mother proves is that the respondent lived a 'vicious life'. A life of vice is not necessarily one of adultery. Living a vicious life may or may not be adultery and that evidence is not enough, in the result we hold that adultery has neither been pleaded nor proved.
4. It is true that desertion is one of the allegations in the petition and that has been proved. The marriage between the petitioner and the respondent look place on the 14th December, 1953. The allegation and the evidence are that she left and deserted the petitioner at the end of 1954 and has not been heard of since. But mere desertion is not enough to claim dissolution of marriage under Section 10 of the Indian Divorce Act. There has to be adultery along with it, the last clause of section being 'adultery coupled with desertion, without reasonable excuse, for two years or upwards'. That is the point which the learned District Judge makes in his judgment and treats that application as one under that clause. But then we are of opinion that that there again the learned Judge made a mistake. Adultery coupled with desertion without reasonable excuse for two years or upwards is one of the grounds in the wife's petition for divorce under Section 10 of the Act. But in the first paragraph of Section 10 which deals with the husband's petition all that is required is the fact that the wife since solemnisation of the marriage had been guilty of adultery. The condition of 'two years or upwards' does not apply to a husband's petition such as in the instant case before us.
5. But then again the question arises, adultery with whom. It is a requirement of the law that normally the adulterer must be made a co-respondent to the petition. Section 11 of the Indian Divorce Act insists that the petitioner shall make the alleged adulterer a co-respondent to the said petition unless of course he is excused from so doing on one of the following grounds, namely, (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, and (2) that the name of the alleged adulterer is unknown to the petitioner although he has made due effort to discover it, or (3) that the said adulterer is dead. The statute, therefore, makes it clear that the only exceptions when the adulterer need not be made a party are those three and none others and even these exceptions can only be made by permission of the Court and if allowed by the Court. We have examined the records and we do not find that the petitioner made any application for permission of the Court nor do we find from the records that the Court allowed the petitioner not to Include the adulterer as a co-respondent on any of the grounds recognised by Section 11 of the Indian Divorce Act.
6. Lastly, we find that the learned Judge accepted evidence which might at best be called absolute hearsay evidence as reports of servants who have not been called.
7. For these reasons we are unable to confirm the decree nisi passed by the learned Additional District Judge. This Court, therefore, sets aside the decree nisi.
8. But with a view to give the petitioner an opportunity to properly make out his case, we grant the petitioner leave to amend the petition for divorce on the lines indicated by us above in the light of Sections 10 and 11 of the Indian Divorce Act and to obtain the necessary leave of the District Judge to amend the petition and to obtain his, leave, if necessary, for not joining the adulterer. As we are setting aside the decree, we must make it clear that the whole suit must be heard de novo and the leave granted to the petitioner must not be confused as an excuse not to issue all the necessary notices to the respondent or respondents as required for the trial of this suit. Evidence already tendered in these proceedings if intended to be used over again can be tendered but only subject to cross-examination by the respondent or respondents who may appear at such re-hearing of the petition, with liberty to the petitioner to adduce such further or other evidence that he may be advised to produce in the light of the observations made in this judgment.
9. There should not be unnecessary delay in these proceedings and the matter should be expedited.
10. There will be no order as to costs.
11. I agree.
R.N. Dutt, J.
12. I agree.