Topic: G Kondaiah vs G Ankamma - alleged adulterer shall be made a co-respondent in the petition

G Kondaiah vs G Ankamma
Equivalent citations: AIR 1988 AP 68 - Bench: Amareswari, B Rao – Date of Judgment: on 15 October, 1986


Amareswari, J.

1. This appeal is from the order of the learned Subordinate Judge, Kayali, in O. P. No. 8178 dismissing the petition filed by the husband for dissolution of marriage.

2. The husband is the appellant. The petition is filed u/s. 13(1)(i) of the Hindu Marriage Act as amended by Act 68 of 19,76. The case of the appellant is that the respondent-wife was leading an unchaste life and she has illicit connection with one Nageswara Rao. The respondent denied the allegation of unchastity. She alleged that the appellant was having illicit intimacy with his brother's wife and with a view to avoid her, she was sent away to her parents' house.

3. The learned trial judge found that the allegation of unchastity on the part of the wife is true and that she was having illicit intimacy with Nageswara Rao. However, he dismissed the application on the ground that the adulterer was not impleaded as a party to the proceedings as required under Rule 8 of the Rules framed under the Hindu Marriage Act.

4. In this appeal it is contended by Sri Vedantha Rao, learned counsel for the appellant that R. 8 has become obsolete after the amendment to the Hindu Marriage Act in 1976.

5. Prior to the amendment one of the grounds for divorce is 'living in adultery'. S. 13(1)(i) of the Act is now substituted by the following words : - "has after the solemnization of the marriage had voluntarily sexual intercourse with any person other than his or her spouse". Thus we see there is a radical change in the section. Living in adultery' means a continuous course of adulterous life as distinguished from one or two stray acts of adultery and the usage of present tense connotes that the person must be living in adulterous life at the time of presentation of the petition. After amendment the position is different. Even if there is a single sexual lapse on the part of the spouses after the solemnization of the marriage, it is a ground for divorce. It is in this context we have to consider R. 8 of the Rules framed under the Hindu Marriage Act. It is as follows : "Where a husband's petition alleges adultery on the part of the respondent, the alleged adulterer shall, if he is living, be made a co-respondent in the petition." This rule was framed before the amendment of S. 13 when living in adultery was a ground for divorce. But that ground itself is now deleted and after the amendment, a single lapse at any time after the marriage is sufficient for obtaining divorce. 'Living in adultery is something different from a stray act of sexual intercourse. Hence in view of the amendment to S. 13 of the Hindu Marriage Act we are of the view that Rule 8 is no longer in force and it is not necessary to implead the person with whom illicit connection is alleged. In this view the appeal has to be allowed.

6. We accordingly set aside the order of the court below and allow the appeal. No costs.

Appeal allowed.