Case Note & Summary
The case involves a writ petition filed by Kiru Sadashiv Porob alias Ajit Sadashiv Porob challenging an order dated 25.2.2013 passed by the Senior Civil Judge, Mapusa, which allowed an application under Order 8 Rule 6-C of the Code of Civil Procedure, 1908 (CPC) filed by the respondent, Anjali Kiru Porob alias Milan Shet. The background is a divorce petition filed by the respondent under Article 4 of the Law of Divorce seeking dissolution of marriage and maintenance against the petitioner. The petitioner filed a written statement with a counter-claim seeking damages of Rs. 1.25 crores from the respondent for allegedly levelling false allegations in the divorce petition. The respondent then filed an application under Order 8 Rule 6-C CPC for exclusion of the counter-claim, arguing that under Article 15 of the Law of Divorce, a counter-claim is admissible only for seeking divorce, not for damages. The trial court allowed the application, leading to the present petition. The legal issue framed by the High Court was whether Article 15 of the Law of Divorce, which admits a counter-claim, corresponds to Order 8 Rule 6A CPC and whether it stands repealed by Section 4(1) of the Goa, Daman and Diu (Extension of the Code of CPC and the Arbitration) Act, 1940 (Extension Act). The court heard arguments from Shri S.S. Kantak, Senior Advocate for the petitioner, and Mr. J. Godinho for the respondent. The court analyzed that Article 15 of the Law of Divorce only permits a counter-claim for divorce, not for damages, and that the provision is analogous to Order 8 Rule 6A CPC but has been repealed by the Extension Act. Consequently, the trial court's order excluding the counter-claim was upheld, and the writ petition was dismissed.
Headnote
A) Family Law - Divorce - Counter-claim - Article 15 of Law of Divorce - The issue was whether a counter-claim for damages is maintainable in a divorce petition under the Law of Divorce. The court held that Article 15 only permits a counter-claim for divorce, not for damages, and that the provision corresponds to Order 8 Rule 6A CPC but is repealed by the Extension Act. The trial court's order excluding the counter-claim was upheld. (Paras 6-7) B) Civil Procedure Code - Counter-claim - Order 8 Rule 6C CPC - Exclusion of counter-claim - The court considered the application under Order 8 Rule 6C CPC for exclusion of counter-claim on the ground that it was not maintainable under the special law. The court held that the counter-claim for damages was not admissible under Article 15 of Law of Divorce, and therefore the trial court correctly allowed the application. (Paras 3-4)
Issue of Consideration
Whether Article 15 of Law of Divorce, in so far as it admits the counter claim, corresponds to the provision of counter claim under Rule 6A, Code of Civil Procedure, 1908 and if so whether it stands repealed by Section 4(1) of the Goa, Daman and Diu (Extension of the Code of CPC and the Arbitration) Act, 1940
Final Decision
The High Court dismissed the writ petition, upholding the order of the Senior Civil Judge, Mapusa dated 25.2.2013 which allowed the application under Order 8 Rule 6-C CPC for exclusion of the counter-claim.
Law Points
- Counter-claim under Law of Divorce is limited to seeking divorce
- not damages
- Article 15 of Law of Divorce corresponds to Order 8 Rule 6A CPC but is repealed by Extension Act
- Order 8 Rule 6C CPC allows exclusion of counter-claim not maintainable under special law
