On a petition for dissolution of marriage presented by a husband or wife on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a co-respondent, unless the petitioner is excused by the Court from so doing on any of the following grounds, namely:—
(a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is leading an immoral life and that the petitioner knows of no person with whom the adultery has been committed;
(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it;
(c) that the alleged adulterer or adulteress is dead.
Simplified Explanation
Section 11 of the Indian Divorce Act, 1869, addresses the procedure when a petition for dissolution of marriage is filed on the grounds of adultery. It specifically discusses the requirement for the petitioner to make the person alleged to have committed adultery (the adulterer or adulteress) a co-respondent in the divorce proceedings.
1. Requirement for Co-respondent
- When a husband or wife files a petition for divorce based on adultery, they must make the person accused of committing adultery (the adulterer or adulteress) a co-respondent in the petition.
- This means that the alleged adulterer must be named and included in the legal proceedings.
2. Exceptions to the Co-respondent Requirement
The petitioner may be excused from naming the alleged adulterer or adulteress as a co-respondent under the following circumstances:
(a) Prostitution or Immoral Life of the Respondent:
- If the respondent (the spouse accused of adultery) is leading the life of a prostitute (in the case of the wife) or is leading an immoral life (in the case of the husband), and the petitioner does not know the identity of the person with whom the adultery was committed, then the petitioner may be excused from naming the co-respondent.
- This exception acknowledges that in certain situations, the identity of the person with whom the adultery occurred may be unknown due to the nature of the spouse’s conduct.
(b) Unknown Identity of the Adulterer/Adulteress:
- If the petitioner is unaware of the name or identity of the alleged adulterer or adulteress despite reasonable efforts to discover it, they may be relieved from making that person a co-respondent.
- The petitioner is required to have made genuine efforts to find out the identity of the adulterer.
(c) Death of the Alleged Adulterer/Adulteress:
- If the alleged adulterer or adulteress is deceased, the petitioner will not be required to name them as a co-respondent.
- This exception is in line with the understanding that legal proceedings cannot continue against a person who is no longer alive.
3. Purpose of Section 11
- Ensuring Fairness in Legal Proceedings:
- This section ensures that the accused party (the adulterer or adulteress) is given an opportunity to defend themselves in court if they are involved in the case.
- Practical Flexibility:
- The exceptions in Section 11 provide practical solutions in cases where the identity of the adulterer is difficult to determine or when naming the adulterer would not be feasible or necessary (e.g., if the adulterer is deceased).
- Protecting the Petitioner:
- The exceptions help protect the petitioner from undue hardship or difficulty in situations where naming the co-respondent is unreasonable or impossible, such as when the identity of the adulterer is unknown or when the respondent’s conduct makes it impossible to identify the co-respondent.
4. Legal Implications
- Adultery as a Ground for Divorce:
- The section reinforces that adultery is a valid ground for divorce, but it also adds a procedural requirement (naming the adulterer as a co-respondent), which ensures that the case is properly contested.
- Co-respondent’s Role:
- The alleged adulterer or adulteress is a co-respondent, meaning they are legally involved in the proceedings, but the petitioner can seek an excuse from this requirement based on the aforementioned conditions.
Key Takeaways:
- Co-respondent Requirement: When seeking divorce on grounds of adultery, the petitioner must name the person accused of adultery as a co-respondent.
- Exceptions: The petitioner may be excused from this requirement if the respondent leads an immoral life, the identity of the adulterer is unknown despite efforts, or the alleged adulterer is deceased.
This section strikes a balance between ensuring fair legal process and allowing flexibility in cases where procedural requirements might be impractical or impossible to fulfill.
