Antonio Filipe Faleiro vs Smt. Sandra Faleiro
2001 Latest Caselaw 888 Bom

JUDGMENT

A.S. Aguiar, J.

1. Heard the learned Advocate for the parties.

2. Admit. By consent, taken up for final hearing.

3. In this appeal, the judgment and order dated 30th March, 2001 passed by the Ilnd Additional Civil Judge, Senior Division, Margao rejecting the plaint and dismissing the suit with costs is impugned, inter alia, on the following grounds :

(1) that the learned Judge has erred in dismissing the suit after rejecting the plaint and hence the judgment and decree is illegal and bad in law; and

(2) that the provisions of Para 4 of Article 4 of the Law of Divorce are directory and not mandatory as the requirement of examining experts and prior examination under Article 247 or 260 of the Civil Procedure Code, 1910 would be an exercise in futility.

4. It is also submitted that the said Articles 247 and 260 of the Civil Procedure Code, 1910 (Portuguese) are not applicable as the said provisions of the Code of Civil Procedure are repealed.

5. The impugned order and decree has been passed in the suit for divorce under Articles 4 and 5 of the Law of Divorce in force in the State of Goa, being Suit No. 151 of 2000. The ground seeking the dissolution of marriage is that the defendant, i.e. respondent herein, is suffering from contagious and incurable disease, namely, leprosy. In the written statement filed, the defendant has denied that she is suffering from any such disease. The learned Trial Judge framed the following two issues, namely :

(1) Whether plaintiff proves that defendant is suffering from incurable disease of leprosy ?

(2) Whether plaintiff proves that suit is maintainable without verification of nature and characteristics of the disease by way of previous examination in terms of Articles 247 and 260 of Code of Civil Procedure ?

and gave his finding on the Issue No. 2 in the negative. Issue No. 2 is an issue of jurisdiction and, therefore, was decided as a preliminary issue. In his reasons for the order, the learned Trial Judge has held that Para 4 of Article 4 of the Law of Divorce is clear and unambiguous and in terms mandatory and held that the procedure set out in Para 4 had to be followed in order to verify the nature and characteristics of the incurable disease and this was a salutary provision as it safeguards the defendant from unnecessary harassment and facing a trial if prima facie it was established that the defendant did not suffer from any such disease.

6. Mr. Zeller, the learned Advocate for the appellant, i.e. plaintiff before the Trial Court, had argued before the Trial Court and also before this Court that Articles 247 and 260 of the Portuguese Civil Procedure Code are repealed. However, the learned Trial Judge has observed that the Law of Divorce is still in force in this Territory; that there are no provisions in the Code of Civil Procedure, 1908 which are inconsistent with Articles 247 and 260 of the Portuguese Civil Procedure Code and the Code of Civil Procedure, 1908 has not repealed Articles 247 and 260 of the said Portuguese Civil Procedure Code. Para 4 of Article 4 of the Law of Divorce reads as follows :

"Paragraph 4. In a case coming under Clause 10, no suit shall be instituted without the nature and the characteristics of the incurable disease being verified by way of previous examination carried out as per Articles 247 and 260 of the Code of Civil Procedure."

7. The suit for divorce has been filed on the ground mentioned at Sub-clause (10) of Article 4, namely, 'Contagious disease found incurable or an incurable disease involving sexual aberration'. Paragraph 4 of Article 4 bars the institution of any suit filed under Sub-clause (10) without verifying the nature and characteristics of such disease by previous examination to be carried out as per Articles 247 and 260 of Portuguese Civil Procedure Code. Articles 247 and 260 of the Portuguese Civil Procedure Code read as follows :

"Article 247: It is permissible to apply for an examination or a site inspection (vistoria) prior to filing of proceedings whenever it is necessary to verify any fact, which shall be difficult to be appreciated thereafter.

Article 260 : Any of the parties can apply for a second inspection, vistoria or evaluation and the same shall be applied within 8 days from the first."

8. Admittedly, in this case no such examination has been done. Hence the suit is not maintainable on account of the non-compliance of the mandatory provisions of Para 4 of Article 4 of the Law of Divorce. The verification of nature and characteristics of incurable disease in accordance with Articles 247 and 260 of the Portuguese Civil Procedure Code is a pre-condition to institution of a suit for divorce under Sub-clause (10) of Article 4. The contention of the learned Advocate for the appellant/plaintiff that the said Articles 247 and 260 of the Portuguese Code are repealed is without substance. The learned Advocate for the respondent has submitted that the contention of the plaintiff that Articles 247 and 260 of the Portuguese Civil Procedure Code are repealed is without merit. The said Articles are very much in force as the said articles appearing in the Portuguese Civil Procedure Code have not been repealed by the Code of Civil Procedure, 1908. In support, he has placed reliance on the case of Shri Dontnic Anthony Fernandes v. Smt Petorlina Antao Fernandes, 1989 (2) Goa LT 238, wherein this Court considered the question whether Section 4 of the Goa, Daman and Diu''(Extension of the Code of Civil Procedure and Arbitration) Act, 1965 does not repeal Article 75 of the Portuguese Code of Civil Procedure. In the said case, the Counsel appearing for the petitioner had submitted that it is not disputed that Article 5 of the Law of Divorce has been repealed by Article 75 of the Portuguese Civil Procedure Code, since Section 4 of the Extension of Code of Civil Procedure Act has specifically laid down that so much of any law in force in Goa, Daman and Diu as corresponds to the Code of Civil Procedure, 1908 or the Arbitration Act was repealed. It was submitted that Section 20 of the Indian Civil Procedure Code corresponds to Article 75 and other Articles regarding jurisdiction occurring in the Portuguese Civil Procedure Code and hence it was submitted that the learned Trial Judge was wrong in holding that Article 75 was still in force. He further submitted that it is not disputed that Article 5 of the Law of Divorce was repealed. Therefore, Article 75 which occurs in the general law, namely the Portuguese Civil Procedure Code, cannot be said to be part and pastel of the Law of Divorce. The learned Court held as follows :

"Section 4 of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and Arbitration) Act, 1965 deals with repeals and savings and provides that so much of any law in force in Goa, Daman and Diu as corresponds to the Code of Civil Procedure, 1908 or the Arbitration Act, 1940, or any part of the said Code of Act, as the case may be, shall stand repealed as from the coming into force of the Civil Procedure Code in Goa, Daman and Diu. Thus, the question that falls for determination of this Court is whether there is any provision in the Civil Procedure Code, 1908 corresponding to Article 75 of the Portuguese Civil Procedure Code. The said Article 75 replaced Article 5 of the Law of Divorce. The said Article 5 was laying down which Court has jurisdiction to deal with suits of divorce or judicial separation of spouses. That was a special law and the Portuguese Civil Procedure Code which otherwise had many provisions dealing with jurisdiction, has specifically provided for the jurisdiction of the Code in respect of divorce and separation of spouses suits in Article 75. This Article, therefore, for the purposes of divorce or separation of spouses is to be considered as being part of the Law of Divorce. Besides as rightly pointed out by the learned Trial Judge, the matrimonial jurisdiction of Civil Courts has been regulated in our country in various Marriage Acts which are special Acts. The Code of Civil Procedure is a general law which, therefore, is derogated by the provisions which occur in special Acts, in that respect. This being so, it is manifest and clear that Section 20 of the Civil Procedure Code is merely general law which does not affect any special provision which has to be read in a special Act or law. Article 75 should be read within the provisions of the Law of Divorce and, therefore, it is to be held that the extension Act of the Code of Civil Procedure, 1908 to Goa, Daman and Diu had not repealed it."

9. Since there are no corresponding provisions in the Civil Procedure Code, 1908, which has been made applicable to Goa, it is clear that Articles 247 and 260 of the Portviguese Civil Procedure Code are in force and require compliance before any suit for divorce is filed under Article 4(10). Admittedly, in the present case, no such examination has been done. Para 4 of Article 4 of the Law of Divorce is not just salutary but in terms mandatory. Failure to comply with the said provisions of Para 4 would, therefore, make the suit not maintainable. The learned Trial Judge has passed order rejecting the plaint and, therefore, dismissing the suit. The same does not require interference.

10. In view of the above, the appeal stands dismissed and disposed of. No order as to costs.