Full Judgment
Ramaprasada Rao, CJ.
1. The plaintiff in O.S. No. 3 of 1976 on the file of the District Judge of Coimbatore (West) sought for dissolution of his marriage with the first defendant on the ground that the first defendant had already secured a decree for judicial separation on 31st August, 1972 in O.S No. 4 of 1971 on the file of the same Court and though he was willing to live with her, it was the first defendant who obtained such a judicial separation and that he was not therefore interested in setting aside the ex parte decree obtained by her. He also alleges that the first defendant has married the second defendant who had been impleaded as a party to the suit and that the second marriage took place on 10th February, 1975. On the basis of the above pleadings he sought for a dissolution of the marriage.
2. Both the defendants 1 and 2 were ex parte even in the Court below. The learned District Judge marked Exhibits A-1 and A-2 as the exhibits filed on behalf of the plaintiff. Exhibit A-1 is a certified copy of the judgment in O.S. No. 4 of 1971 proving that the first defendant obtained a decree, though ex parte, for judicial separation on 31st August, 1972. Exhibit A-2 is the certified copy of the certificate of marriage to establish that the first defendant has married the second defendant. Based on such unrebutted evidence, the Court below granted a decree for dissolution of marriage. But as required in law, the said decree was passed subject to confirmation by this Court.
3. In this Court, Mr. S. Meenakshisundaram was appointed as amicus curiae for the petitioner and he has not even filed any appearance in this Court. He is not before us today. However, Mr. K. Jayachandran who also appeared as amicus curiae for the second defendant in the action read over the judgment and contended that as there is no express plea of absence of collusion in the pleadings, this Court has to consider whether confirmation of the decree passed by the Court below must be granted in the usual course. As regards the main issue whether the plaintiff is entitled to a decree for dissolution, we have no hesitation in accepting the decree of the Court below that he is so entitled to, for the reason that the first defendant not only sought for a decree for judicial separation as early as 31st August, 1972, but she has also contracted a second marriage on 10th February, 1973 as is seen from Exhibit A-2. These factors irretricvably establish that the first defendant is no longer interested in continuing the marital ties. We accept the finding that the plaintiff is entitled to a decree for dissolution of the marriage on the above facts. The contention, however, is that the plea of collusion does not expressly appear in the pleadings. A Full Bench of our Court in Christe Mary Stella v. Dr. Vijay Siddha Raj and Ors. : (1979)1MLJ57 observed that though the verb in Section 17 is 'shall' which is apparently mandatory, vet all the circumstances have to be taken into consideration to come to the conclusion whether a reasonable inference should be drawn that there was collusion as between the spouses. Having regard to the facts of this case, we find that there cannot be and there could not have been any collusion since the decree for judicial separation as well as the second marriage of the first defendant with the second defendant were her own making. There could not be therefore, any collusion. We are unable to accept the only contention of Mr. Jayachandran appearing for the second defendant as amicus curiae.
4. For the above reasons we confirm the judgment of the Court below. We thank Mr. K. Jayachandran for his having acted as amicus curiae and for having assisted the Court in this case.