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IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 89 OF 2003

Shri Sebastiao Paulo Fernandes

Registered Address : House

No.51, Ratwaddo, Navelim,

Salcete, Goa.

.. Appellant.

Versus

1.

Smt. Filomena Fernandes

Registered Address: House No.

51, Ratwaddo, Navelim,

Salcete, Goa.

.. Respondent

Mr. Galileo Teles, Advocate for the appellant.

Mr. S. D. Lotlikar, Senior Advocate wit Mr. G. Xettigar,

Advocate for the respondent.

CORAM :- U. D. SALVI,J.

RESERVED ON : 28

^th July, 2010.

PRONOUNCED ON : 4 ^th August, 2010.

JUDGMENT :

This appeal throws challenge to the judgment and

order dated 10^th June, 2003 passed by the Additional District

Judge, South Goa, Margao in RCA No.165/2001 for quashing

the judgment and decree of IIIrd Addl. CJSD, Margao

effecting division of the properties amongst the plaintiff and

the defendant in Special Civil Suit No.270/1995/III.

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2.

The appellant was the defendant in the said suit

instituted by his wife Filomina Fernandes - the respondent

herein, for the dissolution of their marriage and separation of

their properties and assets. The appellant disputed the

claim for divorce made by the respondent in the said suit, and

as and by way of counterclaim sought divorce with a specific

pleading that he remained entitled for a decree of divorce

under Article 4 sub clause 4 and 5 of law of divorce in

Chapter II of Portuguese Civil Code. Additionally, he made

counterclaim for the division of assets of wedlock (Casal) in

terms of Article 26 and 27 in Chapter II of Portuguese Civil

Code. In his written statement to the said suit, the appellant

gave elaborate account of properties held by them including

the properties given by the parents of the respondent plaintiff

at the time of marriage, the properties given by him to the

respondent, the properties given by way of dowry to their

daughter at the time of marriage and the monies given by

their son-in-law Mr. Francisco Xavier Fernandes.

3.

It appears that the respondent did not give reply

to the counterclaim and failed to appear before the Trial

Court. As a consequence thereof, the learned Trial Court

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proceeded to allow the counterclaim of the appellant on the

basis of the evidence of the appellant adduced in form of an

affidavit at Exh.13 as per Order XIX, Rule 1 of CPC. As a

sequel thereto, the learned Trial Court dissolved the

marriage between the appellant and the respondent, and

allotted the properties enlisted amongst the appellants and

the respondents.

4.

This allotment of the properties and not the

dissolution of the marriage was challenged by the respondent

herein in Regular Civil Appeal No.165/2001 preferred before

the District Judge, South Goa at Margao. After hearing the

parties, the learned District Judge, South Goa at Margao gave

negative finding in respect of the following point :

“Whether the assets and the properties of the spouses

can be ordered to be partitioned in view of Article 26 of Law

of Divorce ?” and proceeded to quash the order of the learned

Trial Court allotting the properties amongst the plaintiff and

defendant in the said suit.

5.

According to the Ld. Advocate Teles for the

appellant, the substantial questions of law framed are not

properly worded, and is, therefore, seeking answer to the

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following remodelled substantial questions of law arising in

the present appeal :

(i) Whether Article 26 of Law of Divorce, 1910 provides

the exclusive remedy for partitioning the properties amongst

the spouses through inventory proceedings and (ii) whether

the counterclaim in divorce suit is impermissible ?

6.

In his view, Article 26 of the Law of Divorce, 1910

is not the exclusive remedy for partitioning the properties

amongst the spouses and the learned Trial Court was right in

making division of the properties and allotting them amongst

the plaintiff and the defendan