SEBASTIAO PAULO FERNANDES Vs. FILOMENA FERNANDES

JUDGEMENT

(1.) This appeal throws challenge to the judgment and order dated 10th 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.

(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 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.