Judgment : A. Shankar Narayana, J. 1. The instant appeal is preferred by the appellant – wife challenging the order in O.P. No.68of 2002, dated 15-05-2003, passed by the Judge, Family Court, Secunderabad, upholding the plea of the respondent – husband, for dissolution of marriage and granting divorce decree under Section 13 (1) (i-a) & (i-b) of the Hindu Marriage Act, 1955 (for short, “the Act”). 2. For the sake of convenience, the parties are, hereinafter, referred to as arrayed in the O.P. before the Court below. 3. The O.P. was allowed in favour of the petitioner arriving at the conclusion that he could prove adultery between the respondent and her employer viz., Ashok, by reason of which, the Court below held that her cruelty against the petitioner was also established. Aggrieved of the same, the instant appeal is preferred. 4. Since certain facts are relevant for proper appreciation of the matter, they are set out, as per the pleas, the parties have put-forth respectively. Their marriage was solemnized on 08-12-1985 at Secunderabad, and their marriage was consummated. Out of their wedlock, two daughters and a son were born. The petitioner alleged that sometime after the marriage, respondent started behaving violently causing physical and mental cruelty to him, but, he withstood the same with a hope that there would be change in her attitude. Since the father of the respondent died in 1997, respondent’s younger sister was shelter-less; she started staying with them and even the petitioner raised Rs.2,00,000/- for her marriage expenses. The petitioner refers to certain alleged acts of respondent in the direction of humiliation caused to him, which details are unnecessary to refer to in the instant appeal. The petitioner alleges that the respondent was leading irresponsible and vagabond life without caring the children and developed extra-marital relations with her employer, a resident of Seethaphalmandi, and she was found moving along with him at odd hours in his car bearing No.APK – 7089 - Maruti Zen and even witnessed by their common relative and mediator to their marriage. Her employer, even threatened him to do away with his life, if he comes in their way, due to which, he suffered heart-attack and admitted in Care Hospital, Secunderabad, and despite intimation given to the respondent, she had no courtesy to visit him. He states that the respondent deserted him from December, 1998, and, therefore, sought the aforesaid relief. Her employer, even threatened him to do away with his life, if he comes in their way, due to which, he suffered heart-attack and admitted in Care Hospital, Secunderabad, and despite intimation given to the respondent, she had no courtesy to visit him. He states that the respondent deserted him from December, 1998, and, therefore, sought the aforesaid relief. 5. Respondent specifically denied the allegations levelled by the petitioner touching the acts of cruelty directed against her. She admits the death of her father taking place on 24-03-1997 in a road accident. She denied the allegations that one S. Gyaneshwar, who is a mediator to their marriage and a common relative, found her on one late night near Tankbund of Fisheries Department, and when he questioned her as to why she was there at that odd hour, she evaded to give reply and that he scolded her. She has also denied the allegation that her employer has threatened the petitioner on telephone to do away with his life, if he comes in their way. She admits that the petitioner suffered heart-attack on 05-10-2000 and was admitted in Care Hospital, but denied the allegation that she did not have courtesy to visit him. She has categorically denied the allegation that she subjected the petitioner to physical and mental cruelty and the desertion alleged by him. 6. In her further pleas, she specifically averred that the petitioner was addicted to consumption of alcohol at Hyderabad and started ill-treating her in filthy language and pressurised her to get gold ornaments and money for doing business and that from the very first day, the mother of the petitioner, who came from village, openly expressed her displeasure against her and used to comment and demand her to bring money from her mother’s house and was instigating the petitioner to marry some other girl for dowry and was insisting her to leave the life of the petitioner, but she bore all these insults keeping in view, the welfare of the children. She avers that she was forced to do private job due to financial constraints of the petitioner and was earning Rs.3,000/- per month and the petitioner developed some suspicion and started relating her with her staff and even telling the same to her Management and unable to bear his harassment and the awkward situation in the office, she was compelled to resign the job, and she had to change three jobs. She also alleged that the petitioner along with his mother, on the instigation of his elder brother viz., Narsimha Rao, demanded and forced her to get Rs.1,00,000/- and gold ornaments from her mother and pressurized her to pursue her mother to transfer a small piece of house plot situated at Malkajgiri, on his name; and when she expressed her helplessness, he resorted to abusing and subjecting her to physical torture. She avers that she did not leave the company of the petitioner on her own; but due to financial problems, petitioner, himself, forcibly drove her away from the house to get Rs.1,00,000/- from her mother. She claimed that since the petitioner was not providing any maintenance to lookafter the welfare of her three children, she has been maintaining the children by doing job. 7. Concerning the alleged extra-marital relations with her employer, she submits that the petitioner is in the habit of relating her with the staff and management and that her employer, Ashok was her boss and Managing Director of M/s. Confruit Exports India Limited. These allegations are imaginary and created for the purpose of obtaining divorce. Hence, sought to dismiss the O.P. for divorce filed by the petitioner. 8. The Court below on the basis of the pleadings put-forth by the parties, formulated the point for consideration thus: 9. During the enquiry, petitioner besides examining himself as PW.1, examined four witnesses as PWs.2 to 5 and exhibited the wedding card as Ex.A-1 in the direction of substantiating his stand. The respondent got examined herself as RW.1, but she has not examined any other witnesses and no document is marked on her behalf. 10. During the enquiry, petitioner besides examining himself as PW.1, examined four witnesses as PWs.2 to 5 and exhibited the wedding card as Ex.A-1 in the direction of substantiating his stand. The respondent got examined herself as RW.1, but she has not examined any other witnesses and no document is marked on her behalf. 10. The Court below, having recorded the gist of the evidence of PWs.1 to 5 and mainly relying on the evidence of PWs.2 to 4, observing that the respondent was living separately and since refused to lead conjugal life with the petitioner, amounts to proving that the respondent is living in adultery and that the evidence of PWs.4 and 5, since unchallenged, and their evidence coupled with the evidence of PWs.1 to 3 proves cruelty, acceded to the relief sought for by the petitioner. That conclusion arrived at by the Court below, since relevant for assessing the controversy between the parties, in the light of evidence on record, the same is extracted, contained in paragraph No.14 of the impugned order: “…… Since four years the respondent living separately and refused to conjugal life with the petitioner without conjugal life the marriage cannot subsist for long. The act of the respondent in refusing conjugal life to the to the petitioner, clinchingly established that the respondent living in adultery. The evidence of Pw4 and 5 became unchallenged, their evidence coupled with the evidence of Pw1 to 3 amounts to cruelty.” 11. The Court below, no doubt, placed reliance on the decisions of the Hon’ble Supreme Court in ParveenMehta v. Inderjeet Mehta ( 2002(5) SCC 706 = 2002(5) ALD SC 6), Dr. M.G. Dastane v. Mrs. S. Dastane ( AIR 1975 SC 1534 ), and decisions of Delhi High Court inRita Nijahawan v. Balakrishna Nijahawan (AIR 1973 DELHI 200 AT 209)and Smt. Shakuntala Kumar v. Om Prakash Ghal (AIR 1981 DELHI 53),in the context of consequence of refusal to lead conjugal life, amounting to mental cruelty and then concludes in paragraph No.15 that the respondent was leading an adulterous life with her employer by deserting the petitioner. 12. Aggrieved of the order of the Court below, respondent preferred the instant appeal raising the following grounds: 13. 12. Aggrieved of the order of the Court below, respondent preferred the instant appeal raising the following grounds: 13. The respondent agitates that the Court below failed to afford an opportunity to cross-examine PWs.4 and 5 and depriving the said opportunity, the Court below came to the conclusion that she has no interest in cross-examining these witnesses and that itself is sufficient to set aside the decree of divorce. The Court below also, somehow, ignored the fact of both the parties residing together from the date of solemnization of marriage on 08-12-1985 to 1987 and blessed with three children, which is undisputed and granted decree of divorce without considering the welfare of the respondent and three children on the basis of un-corroborated testimony of the petitioner. It is also stated that the Court below did not properly appreciate the allegation of adultery with her employer despite the respondent specifically denying the said allegation and, though, the same was not at all proved, still, just on the basis of vague allegation, granted decree of divorce. It is further stated that since the said Ashok, against whom the allegation of adultery was attributed, is not made as a party to the proceedings, nor any iota of evidence brought on record connecting her with her employer, the decree of divorce granted by the Court below cannot be sustained. 14. Heard Sri C.B. Ram Mohan Reddy, learned counsel for the respondent (appellant), and perused the material on record. 15. There was no representation for the petitioner (respondent) on 04-02-2014, on which day, arguments on behalf of the learned counsel for the respondent (appellant) were heard. To afford an opportunity to the petitioner’s counsel, the matter was adjourned to 05-02-2014. Even on 05-02-2014, there was no representation for the petitioner. 16. The learned counsel for the respondent (appellant) contends that since the petitioner failed to implead the alleged adulterer, and, as such, the original petition was hit by non-joinder of necessary party and to fortify his contention, he has relied on a decision of a Division Bench of this Court in MirapalaVenkata Ramana v. Mirapala Peddiraju ( AIR 2000 AP 328 ). He has also placed reliance on yet another decision of this Court rendered in the same context in Ch. Padmavathi v. Ch. Sai Babu ( 2013 (1) ALD 165 (DB). He has also placed reliance on yet another decision of this Court rendered in the same context in Ch. Padmavathi v. Ch. Sai Babu ( 2013 (1) ALD 165 (DB). Last decision relied on by him is in Arun Kumar Agarwal v. Radha Arun and another (ILR 2004 KAR 808, 2003(6) KarLJ 120 ). 17. His next contention is that the evidence of PWs.2 to 4 ex facie is totally unnatural and granting decree of divorce basing on such evidence would render the impugned order unsustainable. 18. In view of the above submissions, the points that arise for consideration are: “Whether the petitioner established that the respondent living in adultery and she treated him cruelly?” (1) Whether non-joinder of the alleged adulterer as a respondent to the proceedings, makes the claim of the petitioner bad? (2) Whether the order under challenge can be sustained? POINT Nos.1 AND 2: 19. In the context of first submission made by the learned counsel for the respondent, it is to be seen whether arraying the so-called adulterer as a co-respondent is a condition precedent to entertain the petition for divorce and also how far the order passed by the Court below is sustainable? 20. This Court in MirapalaVenkata Ramana’s Case (Supra 5), placing reliance on UdaiNarain Bajpai v. Smt. Kusum Bajpai ( AIR 1975 All 94 ), held that since the respondent (husband) therein failed to implead the alleged adulterer, the O.P. is hit by non-joinder of necessary party. The Court extracted the observations, in UdaiNarain Bajpai’s Case (Supra 8), which are thus: “Learned counsel for the respondent also placed reliance on the decision in AIR 1942 All 223 Bowman W.P. v. H.D. Bowman for the purpose of contending that till such time as the appellant’s application for amendment of his petition by addition of the alleged adulterers as corespondents was allowed and the petition was amended accordingly, it was not in accordance with law and not maintainable. It was urged that till the co-respondents were impleaded it was not open to the Court either to frame issues in the petition or admit evidence on Issue No.5 and consequently the framing of the issues by the trial Court as well as the finding on Issue No.5 are without jurisdiction. There is force in this contention which must be accepted.” 21. There is force in this contention which must be accepted.” 21. In Padmavathi’sCase (Supra 6), placing reliance on the decision in UdaiNarain Bajpai’s Case (Supra 8) of Allahabad High Court and MirapalaVenkata Ramana’s Case (Supra 5), referring to Rule 8 of the Rules framed under the Act, which mandates making the alleged adulterer as a co-respondent, where husband alleges adultery on the part of the wife in seeking divorce, and also referring to Section 13(1)(i) of the Act, allowed the appeal setting aside the order of the Family Court dismissing the plea of the petitioner therein to dissolve the marriage by a decree of divorce for non-joinder of the alleged adulterer. 22. In ArunKumar Agarwal’s Case (Supra 7), a Division Bench of Karnatka High Court, addressed the object of impleadment of alleged adulterer as a co-respondent in paragraph Nos.6 and 10, which are thus: “6. Section 13(1)(i) provides that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. A petition under Section 13(1)(i) necessarily therefore involves an allegation of voluntary sexual intercourse by the spouse with a third party. Where such adulterer is named in the petition and evidence is let in to show that the spouse had intercourse with such person, the Court will have to record a finding that the spouse had voluntary sexual intercourse with such named person. There is no gainsaying that such a finding/decision will adversely affect the reputation of the person who is alleged to have committed the adulterous act. Public interest and principles of natural justice require that the person concerned should have an opportunity to defend his reputation before such a finding is recorded. It is precisely for this reason that Rules framed by several High Courts (Allahabad, Andhra Pradesh, Mumbai, Delhi, Gujarat, Himachal Pradesh, Kerala, Chennai, Orissa, Patna, Punjab and Rajasthan) specifically require that the alleged adulterer should be impleaded as a co-respondent in a petition under Section 13(1)(i) of the Hindu Marriage Act, even though no relief may be claimed against him. We strongly commend amendment of the Hindu Marriage (Karnataka) Rui.es, (Sic. Rules,) 1956, to introduce such a provision. We strongly commend amendment of the Hindu Marriage (Karnataka) Rui.es, (Sic. Rules,) 1956, to introduce such a provision. As observed by a Division Bench of Calcutta High Court in Sikha singh v. Dina Chakrabarty and Ors., the rule requiring joinder of the adulterer as a co-respondent proceeds on a public policy to prevent collusion and character assassination. 10. There can be no doubt that in a proceedings where the Court has to decide whether the spouse of the petitioner had voluntary sexual intercourse with another person, by adding such person (alleged adulterer) as a respondent, the Court would be in a better position to effectually and completely adjudicate upon the controversy. Nor can it be said that in a proceeding under Section 13(1)(i) of the Hindu Marriage Act, when the spouse and alleged adulterer are impleaded as respondents, the alleged adulterer is improperly joined as a respondent. Therefore, the alleged adulterer will be a proper party to a proceedings under Section 13(1)(i) of the Hindu Marriage Act. The Family Court and the learned Single Judge merely concentrated on the fact no relief was sought against the second respondent. They therefore considered only whether the adulterer is a necessary party to a petition seeking divorce on the ground of adultery, but completely ignored that the alleged adulterer is a proper party.” Thus, the object of statutory rule requiring joinder of the alleged adulterer as a co-respondent being, not only proceeds on public policy to prevent collusion and character assassination, but also to enable the Court to effectually and completely adjudicate upon the controversy between the parties. In the instant case, the petitioner, despite mentioning the name of the alleged adulterer as ‘Ashok’, still, did not join as a co-respondent for the reasons best known to him. 23. Following the legal position enunciated in the above decisions, we are of the considered view, that non-joinder of alleged adulterer as a co-respondent to the instant proceedings, certainly, renders the impugned order unsustainable. 24. Even on merits, a careful scrutiny of material on record reflects that there is no convincing evidence to arrive at a definite finding in favour of the petitioner on the plea of adultery set up by the petitioner. The Court below mainly relied on the evidence of PWs.2 to 4, touching the plea of adultery set up by the petitioner. Even on merits, a careful scrutiny of material on record reflects that there is no convincing evidence to arrive at a definite finding in favour of the petitioner on the plea of adultery set up by the petitioner. The Court below mainly relied on the evidence of PWs.2 to 4, touching the plea of adultery set up by the petitioner. PW.2, S. Gyaneshwar, who claims that the respondent is his close relative being his cousin sister’s grand-daughter and also said to have mediated for the marriage of the parties, states that on 28-01-1999, after attending a function at his sister’s daughter at Kairathabad, Hyderabad, on his way back on two-wheeler at about 10-30 p.m., saw the respondent standing alone and when questioned by him, she replied that she was waiting for somebody to come and that he has scolded her and told her that he would drop her at her husband’s place, for which she has stated that she was not staying with her husband and staying at her mother’s house at Chikkadpally and then he dropped her at her mother’s house that night. He also states that he came to know that she was leading an irresponsible and wayward life. That was the evidence in his affidavit filed in chief-examination on 22-01-2003. He was cross-examined on 25-01-2003. When he was cross-examined probing into the assertions he made in the chief-examination, he answers that on 28-01-1999, he attended “Vadibiyyam” function at his sister’s daughter at Kairathabad, Hyderabad, and he had been to the said function along with his wife and children. No doubt, he denied the suggestion that the said “Vadibiyyam” function is concerned with women only. But, the evidence of this witness appears to be wholly improbable for the reasons that at that odd hour while he was proceeding on a scooter with his family, it is difficult for him to look at the passers-by on the footpath or the persons standing by the side of the road and it, therefore, appears that he was set up to speak in favour of the petitioner. 25. PW.3 is one P. Om Prakash. According to his own assertion, he is brother-in-law of the petitioner. 25. PW.3 is one P. Om Prakash. According to his own assertion, he is brother-in-law of the petitioner. He too asserts in his affidavit in chief that the respondent was leading a wayward life by abandoning her children and the petitioner, that he along with one K. Swathanthra Kumar mediated to see that the respondent joins the petitioner. He also states that on 24-04-2002 at about 11-30 a.m., he saw the respondent with a stranger going on a motorcycle at St. mark’s High School, East Marredpally, Secunderabad, and on enquiry, he came to know that she was going along with her employer, Ashok, with whom she was leading a free life. No doubt, he had denied the suggestion that he did not find the respondent at 11-30 a.m. on 24-04-2002 as asserted by him, but, the very fact that he was silent in his chief-examination as to the details on what purpose he was present near St. Mark’s High School, East Marredpally, Secunderabad, renders his evidence, wholly unnatural and artificial. 26. PW.4 is one Tirath Raj. He states that he was counselling the parties regarding their marital problems and that the petitioner was approaching him for consulting him in the year 1999, when he was mentally disturbed and was on the verge of commission of suicide and he consoled him and he developed suicidal tendency since the respondent deserted him. He states that he has also consulted the respondent when she had taken away the children. Surprisingly, he asserts in the chief-examination that the respondent informed him that she was moving around and having close contacts only with her boss and employer, Ashok, and that she intends to divorce her husband. The Court below appears to have closed the evidence of this witness without affording reasonable opportunity to cross-examine him. 27. The Court below ought to have afforded an opportunity to the respondent to subject this witness for cross-examination by acting liberally rather than conservatively. 28. PW.5 is one K. Suresh Kumar, who claims that he was doing real estate business on commission basis in association with the petitioner. 27. The Court below ought to have afforded an opportunity to the respondent to subject this witness for cross-examination by acting liberally rather than conservatively. 28. PW.5 is one K. Suresh Kumar, who claims that he was doing real estate business on commission basis in association with the petitioner. He states that in the month of April, 2001 when he was attending to the office work, in the office – cum – house of the petitioner, respondent along with her mother forcibly gained entry and took some cash and documents and clothing of the children and while leaving told him that the petitioner was not a good man and heavily indebted to several persons in Karimnagar and came to Hyderabad and for that reason she left the petitioner and settled with her employer and advised him not to work with the petitioner or else he also would be duped. He states that he has seen the respondent and her employer several times going in his car and seen them together at Necklace Road embracing each other in the late hours and seen them several times together near Minerva complex, Hyderabad. Evidence of this witness was also closed without resorting to a liberal approach and affording further chances to cross-examine him by the respondent. 29. Evidence of these two witnesses, when examined intrinsically, would reflect that they were set up by the petitioner for the reason that what was not pleaded and spoken by the petitioner as to the attempt to commit suicide and suicidal tendency, said to have developed by him, was being asserted by PW.4, for which, it has to be inferred that he is intended to improve the case of the petitioner in an attempt to get decree of divorce. We are, therefore, constrained to observe that the Court below failed to assess the evidence of PWs.2 to 5 in proper perspective and arrived at a wrong conclusion and granted decree of divorce believing the evidence of these witnesses which does not at all inspire confidence. 30. We are, therefore, constrained to observe that the Court below failed to assess the evidence of PWs.2 to 5 in proper perspective and arrived at a wrong conclusion and granted decree of divorce believing the evidence of these witnesses which does not at all inspire confidence. 30. In view of the foregoing discussion, we are of the considered opinion that the impugned order passed by the Court below is unsustainable not only on the ground that the alleged adulterer is not made a co-respondent accounting for infraction of Rule 8 of the Rules framed under the Act, but even on merits, there is absolutely no tenable ground to conclude that the respondent was living in adultery and consequently causing mental cruelty to him. Therefore, we find point Nos.1 and 2 in favour of the respondent and against the petitioner. 31. In the result, the appeal is allowed setting aside the order of the Court below and also dismissing the plea of the petitioner to dissolve the marriage with the respondent by a decree of divorce. There shall be no order as to costs. 32. As a sequel thereto, Miscellaneous Applications, if any, pending in this appeal shall stand disposed of.