¶1dissenting.
¶2The parties to this action lived together as man and wife for two periods of time after the filing of the petition for a divorce. This was clearly a condonation of the acts furnishing the basis of the cause of action. Assuming that the original cause was revived by the subsequent acts of misconduct by the wife, I have a deep-seated conviction that the husband should not be permitted to obtain a divorce upon his original petition without first pleading the facts relative to the con-donation and its revivor. See.17 Am. Jur., § 199, p. 250.
¶3The fact that the defense of condonation and its subsequent revivor does not appear in the pleadings filed by the parties does not preclude their consideration by the court. “The court or the judge, as the representative of the interests of the public, may make *182inquiries having a material bearing upon those interests, notwithstanding the issues which may be raised by the pleadings.” 17 Am. Jur., § 322, p. 313. The purpose of this rule is to guard against fraud and collusion in the exercise of the court’s jurisdiction.
¶4The position assumed by the majority that the pleadings will be treated as having been amended to conform to the evidence eliminates the reasoning behind the foregoing rule. Indiscriminate cohabitation by parties in pending divorce actions will not be curbed by the adoption of the rule announced by the majority. The least that could be required under such a situation is that a mandatory duty be imposed upon the parties to state the truth to the court in the pleadings filed in the case. The public interest will not be subserved, public decency will not be maintained, and fraud and collusion will not be deterred in this type of action by merely advising litigants how it may be done rather than how it must be done. I am not in accord with the superficial treatment given this subject by the majority.