Kerala High Court
Sajan Ninan vs Binu S. George on 10 January, 2003
Equivalent citations: AIR2003KER213, II(2003)DMC257, 2003(1)KLT740, AIR 2003 KERALA 213, (2003) 2 KHCACJ 152 (KER), 2003 (2) KHCACJ 152, ILR(KER) 2003 (2) KER 382, (2003) 1 CIVILCOURTC 307, (2003) MATLR 660, (2003) 3 RECCIVR 44, (2003) 7 INDLD 649, (2003) 1 KER LJ 375, (2003) 2 DMC 257, (2003) 2 HINDULR 246, (2003) 1 KER LT 740, (2004) 2 MARRILJ 739, (2003) 2 CURCC 178, (2002) 94 CUT LT 628
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor, K. Thankappan
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.