The question which arose in Octaviano T. Alcaçoas vs. Rosa Milagrina [2005 Supp BCR 73] was whether Article 317 of the Portuguese Code of Civil Procedure stood repealed by the Goa Daman and Diu Suit Valuation Acts 1965 and the Goa Daman and Diu Civil Courts Act 1965. This issue emerged from divorce proceedings where the divorce petition was valued for the purpose of jurisdiction..
The Goa Daman and Diu Suit Valuation Act, 1965 was enacted to prescribe the mode of valuing certain suits for the purpose of determining the jurisdiction of courts. The Act provides that fixed court fee is payable where it is not possible to estimate, at a money value, the subject matter of the dispute and it is not otherwise provided by the Act.
The object of the Goa Daman and Diu Civil Courts Act, 1965 was to provide for the constitution of a District Court and Subordinate Civil Courts in Goa Daman and Diu.
Section 5 of the Civil Courts Act, 1965 provides that “The District Court shall be the principal Court of original jurisdiction in the district within the meaning of the Civil procedure Code, 1908 or any other law for the time being in force”. The Act further contemplates Courts subordinate to the District Court and that the judges of such Subordinate Courts shall be called Civil Judges. Judges are classified into Senior Civil Judges and Junior Civil Judges. While the jurisdiction of the Junior Judges extends to all civil suits and proceedings of a civil nature wherein the subject matter does not exceed a certain amount or value, the jurisdiction of the Senior Judges does not have any limitation as to the amount or value of the subject matter.
Article 317 of the Portuguese Code of Civil Procedure does not lay down the mode, or, for that matter, any rule for valuing divorce petitions for the purpose of determining the jurisdiction of courts. Article 317 determines which court has jurisdiction to decide actions on the status of persons or on immaterial interests.
It is an elementary principle of jurisprudence that the subject matter of petitions/suits for dissolution of marriage is not capable of valuation. In Thomas G.G. French vs. Julia French, [(1914) 16 BOM LR, 754] the bench of the Bombay High Court comprising of Basil Scott C.J. and Davar and Beaman JJ held that the subject matter of the suit for dissolution of marriage is not capable of valuation. This basic principle ought to have been uppermost in the mind when construing Article 317.
The jurisdiction of the Court to decide a petition for dissolution of marriage is determined by the legislature. Irrespective of the special laws prevailing in Goa Daman and Diu, a glance at the laws in force outside Goa, Daman and Diu indicates that it is the legislature which determines the forum for matrimonial matters.
Under section 31 of the Special Marriage Act, 1954 the petition for nullity of marriage or for divorce shall be presented to the District Court. Section 18 of the Foreign Marriage Act, 1969 also provides that the petition shall be presented to the District Judge. Section 10 of the Hindu Marriage Act, 1955 requires that a petition under this Act shall be presented to the District Court. The Divorce Act contemplates in section 10 (dissolution of marriage) and in section 11 (nullity of marriage) that the petition be presented to the District Court.
All appeals under these Acts lie to the High Court and so also any decision of any Court established under the Parsi Marriage and Divorce Act, 1936 – whether a Chief Matrimonial Court or District Matrimonial Court – shall lie to the High Court.
It need not be overemphasised that the Portuguese Code of Civil Procedure chose to determine the jurisdiction of the court for actions on the status of persons or on immaterial interests in Article 317. And since actions on the status of persons or on immaterial interests are not capable of valuation, Article 317 created a fiction. Strictly speaking, a divorce petition is not a plaint and does not have to comply with Order VII Rule 1 of the Civil Procedure Code. A matrimonial petition, though described as a suit for practical purposes, is different from a suit within the meaning of the Civil Procedure Code, 1908.
The legislature was obviously not oblivious of/to the principle of jurisprudence when it enacted Article 317 of Portuguese Code of Civil Procedure. It provides that: “As acções sobre o estado de pessoas ou sobre interesses imateriais consideram-se sempre de valor equivalente a alçada das Relações e mais 1$.” “Actions on the status of persons or on immaterial interests are always considered to be of the value equivalent to the jurisdiction of the High Court plus one escudo”.
It is the legislature which determines the forum for matrimonial matters.
There is no provision in the Suits Valuation Act, 1965 or in the Civil Courts Act, 1965 corresponding to Article 317 of the Code nor is there any provision in the Law of Divorce in force in Goa, or in other similar laws, which lays down which court has jurisdiction to decide on the status of persons or on immaterial interests. The consequence of contending that Article 317 stands repealed, by the provisions of the Suits Valuation Act, 1965 or in the Civil Courts Act, 1965 are disastrous as, other than Article 317 there is no law which covers valuation for an action for divorce. Such a petition is not capable of valuation. When the legislature enacted Article 317, it did not leave it to the parties to value the divorce petition. The legislature, in its wisdom, chose to couch its intention or object in an unorthodox language: “the value was always considered to be the value equivalent to the jurisdiction of the High Court plus one escudo”. And, hence, an appeal from a decision of the Civil Judge on actions on the status of persons or on immaterial interests would always lie to the High Court. The rules applicable to suits where the subject matter is capable of valuation cannot be made applicable to actions on the status of persons or on immaterial interests.
It is incorrect that the provision of Article 317 of the Code of Civil Procedure is a provision governing valuation of suits for purposes of pecuniary jurisdiction. Since there is no mode of valuing certain suits for the purpose of determining the jurisdiction of the courts, Article 317 has been incorporated by way of exception. Article 317 is a deeming provision for actions on the status of persons or on immaterial interests It gives the parties the benefit of having their case decided by a senior judge (Comarca Judge) and of the procedure provided for regular or ordinary suit; and the advantage of preferring an appeal to the Relação/High Court and from there to the Supreme Court. Section 35 of the Civil Courts Act provides that any reference in any law in force in Goa Daman and Diu to “Comarca Judge” shall be construed as a reference to the Court of Senior Division.
Alberto dos Reis, an eminent Portuguese jurist, commenting on Article 317 of the Code of Civil Procedure (Portuguese) contends that the said provision deals with suits regarding status of persons (suits for divorce, separation of persons and properties, annulment of marriages, investigation of illegitimate paternity …. etc.) The subject matter of such suits or actions has no pecuniary value. The learned jurist further contends: “Precisely because it is not possible, in conscience or with certainty, to attribute a pecuniary value to the suits mentioned in Art. 317, the law has adopted this device: it has fixed for all suits a value equivalent to the jurisdiction of the Relações (High Courts) plus one escudo. The parties have thus the benefit of having their case decided by the Comarca Court (which now corresponds to the Court of Civil Judge, Senior Division), the parties have also the benefit of the procedure provided for ordinary suits (as against the procedure for summary suits); the parties have the advantage of being able to prefer an appeal up to Supreme Court of Justice”.
If Article 317 stands repealed, then the question which arises is: which Court has jurisdiction to entertain a divorce petition or suit? Other than Article 317, there is no other provision in any law which determines which court has jurisdiction to decide matrimonial matters. If parties have the discretion to value divorce petitions for the purpose of jurisdiction, they will have the freedom to choose the forum for the trial of the divorce petitions and the freedom to choose the forum for the appeal. .
Article 317 statutorily determines the value of petitions for divorce and other matters not capable of valuation. The contention that Article 317 of the Code of Civil Procedure stands repealed is, in our submission, ill-considered and leaves a vacuum as there is no provision in any other legislation determining the jurisdiction of the courts to decide on the status of persons or on immaterial interests. The argument that Article 317 of the Code of Civil Procedure stands repealed will give rise to disconcerting uncertainties.
A construction which will promote predictability of results, maintenance of reasonable orderliness, simplification of judicial task, advancement by court of the purpose of legislation and judicial preference for what it regards as a sounder rule of law as between competing ones must find favour with court. [1976 (1) SCC 194 Rameshwar v Jot Ram.]
Article 317 is a code by itself governing jurisdiction of courts to decide on the status of persons or on immaterial interests. Such a construction would be more consistent with the legislative intention and object. The construction of Article 317 should avoid a manifest absurdity.
It needs to be underlined that the laws dealing with actions on the status of persons or on immaterial interests do not contain a provision determining which court has jurisdiction to deal with the matter. For instance, Law of Divorce does not determine which court has jurisdiction to decide divorce matters. Nowhere has it been provided that the petition is to be presented in a particular court. It is, therefore, clear that holding that Article 317 is repealed begets the most perplexing conundrum.
The reasoning in Octaviano T. Alcaçoas vs. Rosa Milagrina [2005 Supp BCR 73], in my submission, is erroneous and, hence, the judgement requires reconsideration by a larger bench. It is submitted that for all the foregoing reasons the opinion expressed by the Hon’ble Single Judge that Article 317 stands repealed has to be reviewed early so that litigants in such actions may not get involved in needless litigation and incur unnecessary expenses.