SAJAN NINAN Vs. BINU S GEORGE

JUDGEMENT

(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 24.7.01. 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 210 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. There upon 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 proceeding 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 Section 45 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 maybe 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.