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Judgment
N.A. Britto, J.—In this Writ Petition, the petitioner takes exception to the order dated 6/08/2007 of the Civil Judge, Senior Division at Quepem, the operative part of which reads as follows;
Suit under Indian Divorce Act is not maintainable. However, liberty is given to the plaintiff to amend the cause title accordingly, if the plaintiff so wishes within prescribed time. No order as to costs.
The petitioner/husband and the respondent/wife are both Christians by religion and their marriage was celebrated at the Church of Guardian Angel, Sanvordem on 4/11/2001 and stands registered in the marriage registration book of the Civil Registrar cum Sub-Registrar of Sanguem. The petitioner filed the petition for judicial separation in terms of Section 22 of the Divorce Act, 1869. Section 22 which provides that:
No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.
The petition for divorce under the said Act was filed in January, 2006 with the allegation that the respondent/wife had deserted the petitioner/husband from 11/03/2002. On notice being given to the respondent, the respondent contested the suit by filing a written statement and in which written statement, the respondent pleaded that the suit as framed, invoking Section 22 of the said Act was not maintainable, particularly, in the state of Goa, and, in terms of the said plea an issue came to be framed by the learned trial Court namely issue no. 3 which reads as follows;
Whether the defendant proves that the suit under the Indian Divorce Act is not maintainable?
and the said issue came to be dealt and decided by the impugned order. In coming to the conclusion that the petition for divorce filed by the petitioner was not maintainable under the said Act, the learned Civil Judge Senior Division observed that from the pleadings of the petitioner it is seen that the marriage of the petitioner with the respondent was solemnized before the Civil Registrar at Sanguem and the said marriage was solemnized under the family laws applicable in the State of Goa and the relief sought for dissolution of marriage and consequently for cancellation of the endorsement made in the marriage registration book, the petition would not lie under the said Act but it had to be under the law of divorce prevailing in the state of Goa.
I have heard the learned Senior Counsel on behalf of the parties. Although Shri Usgaonkar, the learned Senior Counsel appearing on behalf of the petitioner was unable to make a statement as to where the petitioner was born, so as to find out, as to by which law the petitioner was governed, a careful and conjoint reading of paras 3 & 4 of the petition makes it more than clear that the petitioner was born at Hospet in the State of Karnataka to parents who were natives of that State and the plaintiff had come down to Goa in the year 1986 in search of work when his father got employment as a supervisor with Chowgule and Company at Colombo Mines at Goa. Although some arguments were advanced on behalf of the respondent by Shri D''Costa, the learned Senior Counsel, that the petitioner had not pleaded as to where he was born or as to where he had a domicile, the pleadings referred to herein before, make it abundantly clear that the petitioner was born in Hospet in the State of Karnataka and his parents were also natives of that State. In other words, although the petitioner did not take a specific plea about the place of his birth and his domicile, it is again more than clear that the petitioner was born in Hospet and had domicile in the State of Goa and on the assumption that the petitioner was governed by the law existing in that State namely the Divorce Act, 1869 that the petitioner had filed the petition under the said Act. Whether the petition was maintainable before the learned Civil Judge, Senior Division or had to be filed before the District Court, as contended by Shri D''Costa, the learned Senior Counsel, pointing out to Section 23 of the Act the fact remains that such a plea was not raised nor is decided by the trial Court. All that Section 23 of the said Act provides is that:
An application for judicial separation on any one of the grounds aforesaid, may be made by either husband or wife by petition to the District Court and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
Learned Senior Counsel Shri D''Costa, has produced at the time of hearing the marriage certificate of the parties and has submitted that the petitioner was born at Sanvordem and in support of the said submission, learned Senior Counsel points out to a statement in the said marriage certificate which shows the petitioner is "native from Cottage Hospital, Kakoda". This in my view does not take the respondent anywhere at this stage as we are to proceed at this stage on the basis of averments made in the petition. It would be open to the respondent at the hearing of the petition to contend that the petitioner could not be governed by the said Act. Dissolution of marriage between the parties would not depend on where it was celebrated but by the law by which they were governed. The petition was filed contending that the petitioner was governed by the said Act, as the law applicable to him. Nevertheless, the main point canvassed by Shri Usgaonkar, the learned Senior Counsel, on behalf of the petitioner, is that the issue framed by the learned trial Court could not have been decided as a preliminary issue in light of Order 14, CPC, and, I am entirely in agreement with the said submission. Order 14, Rule 1, CPC deals with framing of issues and sub-rule 2 thereof provides that the Court is to pronounce judgment on all issues. Rule 2, sub-rule 1, provides that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
Sub-rule 2 further provides that where issues of both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue related to (a) the jurisdiction of the Court, and or (b) a bar to the suit created by any law for the time being in force. Admittedly, no plea of jurisdiction of the Court was raised either with reference to Section 23 of the said Act or otherwise nor has been decided by the learned trial Court, likewise no specific provision of any law creating a bar to the suit was brought to the notice of the trial Court for the trial Court to have decided the said issue as a preliminary issue.
As already stated, the petitioner had framed the suit clearly alleging that the petitioner being a national born in Hospet, in Karnataka State which has got to be considered as another Country, for the purpose of applying the principles of private inter-national law, was governed by the law prevailing therein namely the Indian Divorce Act, 1869. Whether the petitioner was entitled to any of the reliefs claimed by him is a matter which could be decided not as a preliminary issue but only at the trial of the suit. Considering the above, the petition deserves to succeed, the impugned order is hereby set aside and both the parties are hereby directed to remain present before the learned trial Court for further proceedings, on 10/10/2008.