Christinamary Stella vs Dr. Vijay Siddharaj And Anr. on 7 September, 1978

    Christinamary Stella vs Dr. Vijay Siddharaj And Anr. on 7/9/1978

JUDGMENT

   T. Ramaprasada Rao, C.J.

   1. 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 under
Section 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.

   2. 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.

   3. 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 v. Provash and

   Clarance v. Rachel A.I.R. 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.

   4. 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 under Section 10
of the Divorce Act.

   5. 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 under Section 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.

   6. 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.