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Report No. 15

64. Joinder of adulterer or adulteress in actions founded on adultery.-

We should now refer to the changes proposed in the law relating to the joinder of adulterer as a co-respondent. Section 11 of the Divorce Act, 1869, enjoins that in a petition for divorce presented by the husband, the alleged adulterer shall be made a co-respondent, and to this there are three exceptions provided. The following questions arise for our decision on this subject:-

(1) The first question is whether the rules relating to the joinder of an adulterer should be enacted in the section itself, as under section 11, or, whether they should be left to be framed by the High Court in the exercise of its rule-making authority. Under section 41(2)(a) of the Special Marriage Act this is one of the matters on which the High Court is authorised to make rules. That, however, is not the practice in England, and, further, to delegate the power to the High Courts would lead to diversity and differences in provisions, on a subject in which uniformity is both possible and desirable. We have, therefore, enunciated the rules as to joinder of an adulterer in the section itself.

(2) Another question which arises under this section, is, whether the grounds set out in section 11 of the Indian Divorce Act, 1869, for dispensing with the joinder of an adulterer, require to be enlarged. While we think that those grounds must prima facie, be taken as exhaustive, the courts should, nevertheless, have a discretion in particular cases to excuse the non pleading of the adulterer as a party to the proceedings. Such a provision is to be found in section 3 of the Matrimonial Causes Act, 1950, and we have inserted a similar provision in the proposed Act.

(3) A third question which calls for decision is whether the adulteress should be made a party when a petition for divorce is presented by the wife on the ground of adultery. The principle on which this legislation proceeds is that the husband and the wife should, in all matters, be placed on the same footing, and it therefore follows that the adulteress also should be impleaded as a co-respondent, and that is what we have provided.

(4) And, lastly, it has been suggested that when a petition for judicial separation is made on the ground of adultery, the adulterer or the adulteress should also be made a co-respondent as in an action for divorce. We have agreed with this suggestion, and given effect to it.

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