Sajan Ninan vs Binu S. George on 10 January, 2003

    Sajan Ninan vs Binu S. George on 10/1/2003

JUDGMENT

   K.A. Abdul Gafoor, J.

   1. The respondent wife filed an application under Section 10 of the Divorce
Act, 1869 alleging desertion and cruelty by the appellant/husband. The
appellant/husband filed a counter affidavit dated 24.7.2001. The parties went on
trial. The respondent/petitioner closed her evidence. The appellant/husband
commenced his evidence. He introduced certain evidence as the nullity of the
marriage between them. At that point the respondent wife objected contending
that such evidence could not be adduced in a petition under Section 10 filed by
her on the ground of desertion and cruelty. This was answered by the appellant
contending that in the counter affidavit he had already raised a counter claim
for declaring the marriage a nullity in terms of Rule 6A Order 8 CPC read with
Section 45 of the Divorce Act, 1869. Thereupon the learned single Judge was
called upon to decide whether a counter claim will lie in a proceedings under
Section 10 in the light of Section 15 of the Act alleging nullity of marriage.
That was decided as per the order impugned wherein it is held that a counter
claim as to nullity of marriage cannot be raised under Section 15 by respondent
in a proceedings under Section 10. That order is impugned in this appeal.

   2. It is contended by the appellant that his counter claim raised in the
counter affidavit was not in terms of Section 15. It was in terms of Rule 6A
Order 8 CPC read with Section45 of the Divorce Act. Therefore the learned single
Judge went wrong in rejecting the claim on the ground that it was one under
Section 15 wherein the same relief as sought for in the petition for divorce
alone could have been raised by the respondent in the petition.

   3. Independent proceedings are permissible for divorce under Section 10 which
appears in Part III of the Divorce Act and for nullity of marriage under Section
18 which appears in Part IV of the Act. Section 15 appears in Part III of the
Act. Section 15 enables a husband or wife as the case may be arrayed as opposite
party to defend the case put up by the other party and to seek the same relief
alleging the grounds of desertion or cruelty as the case may be against the
person who had instituted the petition under Section 10 of the Divorce Act.
Section 15 contemplates an application by the opposite party concerned seeking
almost same relief as admissible in Part III namely dissolution of marriage. In
other words a respondent in a divorce petition can seek divorce while defending
the action against him or her alleging the very same or the similar grounds
urged against her/him. But in Part IV of the Act which deals with nullity of the
marriage, no such right is conferred on the opposite party. So an application
under Section 15 can be maintainable only for a divorce. In that respect the
learned single Judge was justified in holding that a counter claim shall be
allowed only in terms of Section 15, that too for claiming a divorce alone and
not for nullity.

   4. But the contention of the appellant husband is that his counter claim was
not under Section 15, but under Rule 6A Order 8 CPC read with Section 45 of the
Act. Section 45 makes CPC applicable to the proceedings under the Act. Therefore
any one who has having a counter claim can raise such a claim under Order 8 Rule
6A CPC. That is what has been raised in the counter affidavit. Necessarily, that
shall have to be tried independent of the provision under Section 15, when CPC
as such is made applicable to the proceedings under the Divorce Act.

   5. Going by Order 8 Rule 6A CPC a counter claim is permissible only in a
suit. It is true that CPC as such is made applicable to Divorce Act. In such
circumstances those provisions in CPC which are applicable to an application
filed under Section 10 or 18 as the case may be will be applied as a procedural
provision to try such a petition under the Divorce Act, 1869. More over Section
45 of the Divorce Act comes under Part XII of the Divorce Act dealing with the
procedures to try the application under the Act. Thus, it is clear that the
application of Code of Civil Procedure is for the purpose of the procedure for
trial of the application under the said Act and not for any substantial relief
separately prayed for. Further Section 45 makes it clear that CPC is made
applicable "subject to provisions" in the Act. The provisions in the Act are
specific with regard to counter claim only in respect of the petition coming
under Part III for dissolution of marriage alone. No such provision is made
applicable in Part IV dealing with nullity of marriage.

   6. In such circumstances even if Section 15 is not applicable as contended by
the appellant, as Section 45 is relating to the procedural matter alone, it
cannot be contended that Rule 6A of Order 8 CPC is applicable to the proceedings
under the Divorce Act. Therefore there is nothing for interference with the
order impugned. Any how it is made clear that it will not preclude the appellant
in agitating a separate petition on the self same ground urged in the alleged
counter claim.

   Appeal is dismissed. No costs.