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Edger Wesley Vs. Emity Violet and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberMatrimonial Cause No. 12 of 1976
Judge
Reported inAIR1980Mad3
ActsDivorce Act, 1869 - Sections 47
AppellantEdger Wesley
RespondentEmity Violet and anr.
Respondent AdvocateK. Jayachandran and ;Amicus Curiae, Advs.
Cases ReferredChristie Mary Stella v. Dr. Vijay SiddhaRaj
Excerpt:
- - 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......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. jayachandran who also appeared 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 assed 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.....
Judgment:

Rakaprasada Rao, C.J.

1. The plaintiff in 0. S. No 3 of 1976 an the file of the District Judge, Coimbatore West, sought for dissolution of his marriage with the first defendant on the ground that the first defendant has already secured a decree for Judicial separation on 31-8-1972 in OS No. 4 of 1971 on the file of the same Court and though he was willing to live with her, it was the defendant who obtained such 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 ending who has been imp leaded as a party to the suit and that the second marriage took place on 10-2- 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 Exts. A-1 and A-2 as the exhibits filed on behalf on the plaintiff. Ex A-1 is a certified copy of the judgment in OS No.4 of 1971proving that the first defendant obtained a decree, though ex prate, for judicial seperation on 31st August 1972. Ex 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. Jayachandran who also appeared 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 assed 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 1975, as is seen from Ex. A-2. These factors irretrievably establish that the first defendant is no longer interested in continuing the material ties.

We accept the finding that the plaintiff is entitled to a decree for dissolution of other marriage 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 Christie Mary Stella v. Dr. Vijay SiddhaRaj 1978 TNLJ 430 observed that though the verb in Section 47 in 'shall' which is apparently mandatory, yet 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.

5. Order accordingly.


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