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Judgment
Ramaprasada Rao, CJ.
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.
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.
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 Christinamary Stella Vs. Dr. Vijay
Siddharaj and Another, 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.
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.