Christinamary Stella vs Dr. Vijay Siddharaj and Another

T. Ramaprasada Rao, C.J.—This case comes up before us for confirmation of the order passed by the District Judge, Pudukkottai, who

allowed the petition filed by the first wife and dissolved the marriage as between the petitioner and the first respondent on the ground that the first

respondent contracted a second marriage with the second respondent after the solemnisation of the first marriage and that the first respondent

deserted the petitioner and is permanently living with the second respondent and had a child through her also. The facts, as disclosed in the petition,

are that the first respondent married the petitioner on 19th February, 1973 in the Sacred Heart Church, Pudukkottai, and the marriage

solemnisation certificate, though not filed in the trial Court, has been filed in this Court which we mark as Exhibit C-1. Having thus married the

petitioner on 19th February, 1973, it appears that the first respondent married again, 20 days thereafter on the 11th of March 1973, the second

respondent and was not frequenting the petitioner. The case of the petitioner is that after the first respondent took the second respondent as his

wife without her knowledge and consent, the first respondent suppressed such an act of adultery and neglected the petitioner also far a

considerable length of time. The petitioner''s further ease is that by mistake she did not add in the original pleadings about the fact of both the

petitioner and the first respondent having lived together lastly for about five days up to 14th May, 1974, in Pudukkottai. In order to fill up the void

in the pleadings, C.M.P. No. 9401 of 1978, was taken out in this Court for permission to file an additional affidavit disclosing such factual

residence together of the two spouses at Pudukkottai on or about 14th May, 1974. Having regard to the facts in this case and as there is no

opposition we permitted the petition and admitted the additional affidavit in support of the pleadings already on record. On the ground of adultery

and taking another woman in marriage during the subsistence of the first spouse the application for dissolution of marriage was filed in the District

Court of Pudukkottai u/s 10 of the Indian Divorce Act. Though the respondents were served, they were absent in the trial Court. In fact, the

learned District Judge noticed that Thiru Rangaswami Iyengar, advocate, filed vakalat for both the respondents. But thereafter no counter was filed

and no representation was made. The petitioner examined herself as P.W. 1 and spoke to the facts already referred to. When the matter came up

before us in the first instance we perused the record and found that there was no specific allegation about the last residence of the spouses at

Pudukkottai, and Mrs. Hamsala Rajendran appearing for the first respondent, having taken up a preliminary objection about the maintainability of

the petition itself on the technical ground that the District Court, Pudukkottai, had no jurisdiction to entertain the petition in the absence of a specific

plea that the spouses were last residing together within the jurisdiction of the Pudukkottai District Court, we permitted the petitioner to file an

additional affidavit, which has since been filed and the permission to entertain the said affidavit has been granted by us in C.M.P. No. 9401 of

1978. Another objection taken by Mrs. Rajendran, acting as amicus curiae for the first respondent was that there was no specific allegation about

collusion in the pleadings and as such an allegation is a condition precedent for the maintainability of the application itself, this is a fatality which

cannot be cured and hence this petition has to be dismissed.

The petitioner''s counsel filed another document in proof of the second marriage, which again was not filed in the Court below. It is marked as

Exhibit G-2 under whioh it is fairly clear that the first respondent took the second respondent as his wife and that the marriage was celebrated at

Sri Sidheswaraswami Temple Kalyanamantapam, Kanchamalai, Salem District. On the basis of the testimony of P.W. 1 which was not challenged

in any manner, but in the light of the inchoate pleading, the learned District Judge issued an order of dissolution subject to confirmation by this

Court.

We may refer to the fact that this case came up earlier before us and in the perspective of events we gave an opportunity to the petitioner to the

complete the pleading at least at this stage and let in proof about the place of the last residence as between herself and the first respondent. It is in

that context that the affidavit filed with C.M.P. No. 9401 of 1978 has been, accepted by us. This shows that the petitioner and the first respondent

were last residing together at Pudukkottai. No doubt, the learned Counsel for the first respondent is right when she pointed out the lacuna in the

pleadings and even in the testimony of P.W. 1 about the absence of a specific allegation as to the place of last residence as between the two

spouses. This, in our view, is purely a question of fact which could be supplemented even at the stage when the matter comes up for confirmation

of the order of dissolution by this Court. This is a case in which both the respondents are aware of the petition. They did not participate in it. They

never wanted to involve themselves in it and the learned Counsel for the second respondent, who is also appearing as amicus curiae before us says

that she has no objection for the grant of an order of dissolution of marriage as prayed for. Taking all these circumstances into consideration and as

no counter was filed we, after accepting the evidence of the petitioner through her affidavit filed in C.M.P. No. 9401 of 1978, are of the view that

there is sufficient material on record to show that the spouses last resided within the local limits of the original jurisdiction of the District Court of

Pudukkottai. The decisions referred to by Mrs. Rajendran as amicus curiae for the first respondent, namely, Premlatika Sircar Vs. Provash Ch.

Sircar, and Clarance v. Rachel AIR 1964 Mys. 67 are distinguishable. In the Calcutta case there was absolutely no evidence. The Special Bench

noticed the records and in the absence of any supplementary pleading or an attempt on the part of the aggrieved spouse to supplement the pleading

and the record, they had to necessarily hold that the District Court which passed the order of dissolution did not have the requisite jurisdiction to

pass the order, as the place where the spouses resided or last resided was not established to the hilt. In the Mysore case, the Special Bench

noticed, as a fact, that there was no material to show that the two parties were together at any time within the limits of the District Court to which

portals the case was brought excepting �to allege that they were present on the date of marriage. The facts in our case are different. No doubt,

as we said, the original pleadings were defective. But the respondents never challenged the pleadings or the course of the litigation. The petitioner

has filled up the void in this Court by filing the supplemental affidavit and swore that she and her husband lived together as such spouses at

Pudukkottai at her permanent residence for five days up to 14th May, 1974. This allegation which is not controverted is sufficient to rest

jurisdiction in the District Court, Pudukkottai to entertain the petition which was filed after two years after such date of desertion. The petition was

filed on 24th June, 1976. The allegation is that on and after 14th June, 1974, the first respondent kept himself out of the company of the petitioner,

and, therefore, the petitioner, by supplementing the pleadings which have not been challenged before us, has established that she and her husband

last resided together at Pudukkottai. Therefore, it follows that the District Court, Pudnkkottai, as the Court of original jurisdiction, within whose

local limits the petitioner and the first respondent last resided together, did have the jurisdiction to entertain the application.

On the merits, we are satisfied that the first respondent took the second respondent as his wife as pleaded and it is proved by the production of

Exihibit C-2 which is a record maintained in the regular course by Sri Sidheswaraswami Temple Kalyanamantapam authorities. Therefore, it

follows that the first respondent contracted a marriage with another woman within the meaning of Section 3(8) of the Indian Divorce Act when the

former spouse of his was alive and without her consent and knowledge. Therefore, he has committed an act which entitled her to present a petition

for dissolution of marriage u/s 10 of the Divorce Act.

The only other ground of attack by the learned Counsel for the first respondent is that the allegation as to collusion has not been expressly

mentioned and that such a reference as to collusion is the sine qua non for the grant of relief under the Indian Divorce Act. No doubt, the language

of Section 47 of the Divorce Act says that every petition under the Act for a decree of dissolution of marriage, or of nullity of marriage, or of

judicial separation shall state that there is not any collusion or connivance between the petitioner and the other party to the marriage. Rightly,

therefore, an accent is given to the verb ""shall"" appearing in Section 47 and the contention of Mrs. Rajendran is that in the absence of compliance

with the imperative guideline set in Section 47, the petition has to fail. We are of the view that the use of the word ""shall"" in Section 47 ought not to

be understood in such a rigid manner. Collusion as between the two spouses in order to snatch an order for dissolution of a solemn marriage can

easily be discovered even if the pleadings are delightfully silent about the prescribed norms in Section 47. In the instant case, the respondents

having entered appearance through an advocate, deliberately kept themselves out of the Court as well as the witness box. Even in this Court they

has not given any instructions to the counsel who has been appointed amicus curiae to contest the matter. The petitioner, examined as P.W. 1,

would say that there was no collusion as between her and her husband. These factors cumulatively taken is a valid substitute for the absence of a

plea in the pleadings that there was no such collusion as between the spouses. As each case has to be decided on its own merits, the mere absence

of a specific plea about the absence of collusion would not vitiate the entire matter so as to compel a Court exercising jurisdiction under the Indian

Divorce Act, to dismiss the petition in limine. If proof aliunde is available so as to satisfy the consience of the Court that there was no such collusion

and that such evidence is available either In the pleadings or in the course of the hearing of the petition or at any other specific subsequent stage,

this could be taken into consideration and a mere accent upon the verb ""shall"" in Section 47 shall not be the sole criteria for the dismissal of a

petition by a wife who is faced with a circumstance where her husband has openly violated the matrimonial bondage and taken a second wife and

has deserted her since 1974. We are satisfied that the petitioner is entitled to a decree for dissolution of marriage u/s 10, she having proved

substantially all the relevant facts which are necessary to enable her to obtain an order of dissolution of marriage. In these circumstances, the order

of the Court below is confirmed.

We place on record our appreciation of the assistance rendered by Mrs. Hamsala Rajendran as amicus curiae for the first respondent who

brought to our notice certain lacune appearing on record, which had to be rectified only in this Court.