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Matrimonial Reference No. 3 of 1974, decided on 20th January, 1979.

-- S. 51-Dissolution of marriage--Divorce on ground of adultery- Petitioner though at liberty to verify his case in whole or in part by affidavit yet such affidavit ordinarily not to be accepted without corroborative evidence of adultery either by a witness or by surrounding circumstances-Such course necessary To avoid possibility of obtaining dissolution of marriage by col lusion between spouses.-[Dissolution of marriage].

Halsbury's Laws of England, Fourth Edn., Vol. XIII, p. 279, para 566 ref.

--- S. I1--Allegation of living immoral life-Not same thing as leading life of prostitute-Word "prostitute" means woman offer ing her body to indiscriminate sexual intercourse, specially for hire.-[Words and phrases].

Mst. Razia v. The State A I R 1957 All. 340 ref.

Ss. I I & 13-Joining adulterer as co-respondent-Mandatory, unless excused on any of grounds mentioned in S. 13-Duty cast upon Court under S. 13 to dismiss petition presented or prosecuted in collusion with respondent or co-respondent- Reasons for impleading wife and adulterer---Adulterer though his name known yet not joined as co-respondent-Chances of obtaining decree in collusion with respondent increase-Allegations if false correspondent present before Court shall defend petition.

Petitioner (absent).

Respondent in person.

Date of hearing : 20th January, 1979.

The ex pane decree nisi passed by the District Judge, Sanghar, on a petition under section 10 of the Divorce Act. 1869 (hereinafter called the Act') dissolving the marriage of the petitioner with the respondent is before us for confirmation under section 17 of the Act.

The petitioner filed the petition stating that the petitioner's marriage with the respondent was solemnized according to the Christian rites in the month of August, 1962 at Gali No. 3, Christian Town, Lyallpur, (now known as Faisalabad) and six children were born out of the wed lock, the eldest being a daughter of 8 years of age and the youngest a son of about 31 years of age and four of them were alive on the date of the petition. The petitioner further stated therein that three years before the filing of the petition the petitioner's family permanently shifted to Chak No.11 Sanghar where the petitioner started private medical practice. He alleged that immediately after the parties had started residing at Chak No. 11, Sanghar people unknown. to the petitioner started visiting the respondent and used to stay with her in their house for some days. He further alleged that different people on different occasions used to visit the respondent and reside with her in the house and commit adultery with her although the petitioner rebuked her and stopped co-habiting with her. He further alleged that as a result of adultery she became pregnant. The petitioner also stated that the respondent six months before the filing of the petition in his absence went away to the house of her father at Lyallpur taking all her clothes, ornaments, cash of Rs. 1,500 and all the children. According to the petitioner, he took 2 or three me n from his village to the house of the respondent but she refused to come back but she confessed before these persons that she was pregnant due to adultery.

Notice of the petition was issued by the learned District Judge to the respondent but she remained absent. Therefore, by the order dated 10th April, 1974, the learned District Judge, Sanghar, decided to proceed ex parte and fixed the case for ex parte proof for 27th April, 1974. Thereafter, it appears, the case was adjourned on several dates and finally the decree nisi passed on 21st September, 1974, by acceptance of affidavit of the petitioner in ex parte proof. In the affidavit filed by the petitioner he almost repeated the allegations made in the petition with the omission of the allegation of confession of adultery made before two or three persons whom he had taken to Lyallpur and whom he called Nekmards' and with some other variations of not much significance, except that the respondent had refused to come back in spite of pur suasions. Therefore, we have to examine whether the petitioner has proved adultery on the part of the respondent by the affidavit filed by him in ex parte proof.

It is the case of the petitioner that immediately after their shifting from Lyallpur to Chak No. 11, Sanghar people unknown to the petitioner started visiting the respondent and stayed for some days in his house and committed adultery with her so much so that she became pregnant. Now, if the allegations were true the petitioner would have known the names of the persons who committed adultery with the respondent and stated their names in the petition and would have also joined them as co-respondents for the allegation in the petition is that the respondent used to say that they were her relations. It is highly im probable if such was the case that the petitioner would not have asked from the respondent their names and she would not have disclosed the names of her relations who used to stay with her in the house of the petitioner. Moreover, it is quite unimaginable that the petitioner would have allowed his wife to commit adultery in the very house under the very roof under which the petitioner was staying with her unless he was conniving at or was an accessory to the same for it is not his case anywhere that the respondent used to commit adultery with those persons secretly and he came to know of the same through some other persons. No doubt, the petitioner has alleged in the affidavit that he used to stop her from committing adultery but she never refrained from doing so, but to us, these allegations seem to have been made to avoid the attraction of the provisions of section 12 of the Act where under Court is obliged to dismiss a petition for dissolution of marriage if the petitioner is found to have connived at or has been accessory to the adultery committed by the wife and but for these allegations the petition would have become prima facie liable to dismissal on this ground alone.

Further, the petitioner has alleged that the respondent had become pregnant on account of the adultery committed by her with other persons. We would examine this allegation in the background of the case which the petitioner has set up. It is his case, as stated in the petition, that his marriage was solemnized in the year 1962 and on the date of filing of the petition i.e., 7th August, 1973, he had four children alive from the wedlock, two sons and two daughters, the eldest being a daughter of about 8 years of age and the youngest being a son of about 3 j years of age. 1t is also his case that three years before the filing of the petition he and the respondent had come to stay permanently at Chak No. 11, Sanghar, therefore, it is obvious that during three years of their stay at Sanghar no child was born out of the wedlock. Now, if the respondent had become pregnant from any of the alleged visitors there would have been another child born to the respondent either before the filing of the petition or before the date of filing of the affidavit in ex parte proof which was filed about 9 months thereafter. But there is no mention of any such bastard child having been born to her before the filing of or during the pendency of the petition. There is also no mention as to what happened to the alleged pregnancy. Significantly, the petitioner has stated in the petition that he had taken 2 or 3 persons from his village to the house of the father of the respondent, where she was staying and before them she had confessed commission of the act of adultery but in the affidavit he has made no mention of any such confession.

To us the real reason for filing the petition for dissolution of the marriage appears to be that the respondent had refused to come back and stay with him. Further she had gone to Lyallpur to her father's house taking away all her children, clothes and ornaments worth Rs. 1,500, for he has stated both in the affidavit and the petition that he had taken 2 or 3 persons or Nekmards' of the village to the respondent and had "Samjhoud" her but she refused either to come and reside with the petitioner or return the children, clothes and ornaments to him. It is, therefore, clear that the petitioner filed the petition after he had failed to persuade her in spite of all efforts to come back to him. This leads us to further conclusion that even if the allegation of adultery was true, the petitioner had condoned the same which intention is quite manifest by the fact that petitioner had gone to take her back and requested her to come and stay with him. Thus he had condoned the adultery complained of which again makes the petition liable to be dismissed in accordance with the provisions of section 13 of the Act.

There is yet another aspect of the case which we may discuss at this stage.

There is no doubt that the petitioner was at liberty to verify his case in whole or in part by affidavit as provided in section 51 of the Act. Ordinarily such affidavit should not be accepted without corroborative evidence of adultery for the evidence of the husband or the wife or the co-respondent alone ought to be corroborated, either by a witness or by surrounding circumstances. (See Halsbury's Laws of England, 4th Edition, Volume XIII, p. 279, paragraph 566). It is all the more necessary to avoid any possibility of obtaining dissolution of the marriage by collusion between the two spouses. Therefore, the learned District Judge ought not have passed the decree nisi on evidence by the affidavit alone.

We have noticed that the petitioner has not joined the alleged adulterer as co-respondent to the petition which he was obliged to join under section I L of the Act, unless he was excused from doing so on one or more of the grounds mentioned in section 11 of the Act. These grounds are that the respondent is leading a life of a prostitute and the petitioner knows of no persons with whom the adultery has been commit ted; that the name of the alleged adulterer is unknown to him although he has made due efforts to discover it ; that the alleged adulterer is dead. We, however, find that the petitioner had made an application to the Court for being excused from joining the adulterer as co-respondent on the ground that the respondent was leading an immoral life and the petitioner knew of no person with whom she had become pregnant, and that the name of the alleged adulterer was unknown to him, although he had made efforts to discover it. The affidavit filed in support of this application only reproduces the grounds mentioned in the application without addition of any other matter. It further appears from the record that the District Judge had granted the appli cation by the order dated 10-8-1973 in a routine manner without applying his mind to the grounds mentioned in the application and without con sidering the nature of the allegations made in the petition.

In our opinion the learned District Judge should not have granted this application for more than one reason. The petitioner had stated two grounds for being excused from joining the adulterers as co-respondents which we have already noticed. However, the allegation that the respondent was living an immoral life is not same thing as leading the life of the prostitute. The expression prostitute' means a woman who offers her body to indiscriminate sexual intercourse, especially for hire) (See Mst. Razia v. The State (A I R 1957 All, 340). The definition of prostitute and pros titution as given in the West Pakistan Suppression of Prostitution Ordinance, 1961 also supports this meaning. According to this Ordi nance prostitute means any female available or known to be available for purposes of prostitution and prostitution means, promiscuous sexual intercourse for hire, whether in money or kind. Further, the second limb of the first ground that the petitioner knew no person with whom the adultery had been committed and the second ground that the alleged adulterer was not known to the petitioner when examined in the light of the allegations made in the petition would have been found per se incorrect for the allegations made in the petition were that people unknown to the petitioner used to visit the respondent and stay in the house for some days and to go away on the objection of the petitioner and the respondent used to state that they were her relatives and that different people on different occasions used to visit the respondent and reside with her in the same house in which he was living and commit adultery with the respondent. Therefore the petitioner knew the persons with whom allegedly the adultery had been committed. Moreover, the petitioner did not state in the application or in the affidavit that efforts were made to discover the name or names of the alleged adulterer or adulterers.

Joining to the adulterer as co-respondent has been made mandatory unless excused on any of that the grounds mentioned in section to of the Act and there is good reason for it, as a duty is cast upon the Court under the provisions of section 13 of the Act to dismiss a petition which is found to have been presented or prosecuted in collusion with the respondent or co-respondent and if the adulterer when his name is known, is not joined as co-respondent, the chances of obtaining a decree in collusion with the respondent increase for if false allegations are made there would be at least the correspondent present before the Court to defend the petition.

For all these reasons we do not confirm the decree nisi and dismiss the petition.

Since the petitioner has not appeared before us to support the decree nisi we make no order as to costs.

K. M. A. Decree not confirmed.

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