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2002 DIGILAW 258 (PAT)

Kumar Raju v. Reeta Kumari

2002-02-21

INDU PRABHA SINGH, NAGENDRA RAI

body2002
Judgment 1. This appeal is directed against the order dated 8-11-2001 passed by the learned Single Judge in Miscellaneous Appeal No. 462 of 2001 holding that the Miscellaneous Appeal is not maintainable against the order dated 4/07/2001 passed by Addl. District Judge IIIrd, Begusarai dismissing the petition filed under the Hindu Marriage Act (hereinafter referred to as the Act) for decree of divorce under Sec. 13 of the Act. 2. The appellant filed a petition for grant of decree of divorce being Divorce Case No. 2 of 1997/14 of 2000, under Sec. 13 of the Act against the opposite party, his wife. The said petition was dismissed on 4/07/2001 as stated above. However permanent alimony and cost was awarded while dismissing the aforesaid petition. 3. The Stamp reporter raised objection on 12-10-2001 that the First Appeal is maintainable and not the Misc. Appeal as the order passed under Sec. 13 of the Act either granting a decree for divorce or refusing the same is a decree under the Act. The appellant contested the aforesaid matter before the learned single Judge who as stated above accepted the stamp report and held that the First Appeal is maintainable. 4. The learned counsel appearing for the appellant submitted that under the provisions of the Act a petition is filed for grant of divorce and an order passed on the said petition does not amount to a decree and accordingly, Misc. Appeal is maintainable and not the First Appeal which is filed against a judgment and decree rendered in a suit disposed of under the provisions of the Code of Civil Procedure (hereinafter referred to as the Code). In this connection, he drew our attention to the provisions contained under Sec. 21(B) of the Act where special provision has been made with relation to trial and disposal of petitions under the Act. He also drew our attention to the Rules framed under Secs. 14 and 21 of the Hindu Marriage Act, 1955 (Act XXV of 1955) and by referring to the provisions submitted that the petitions are filed under the Act and not a plaint as provided under the Code and as such the order finally disposing of the petition cannot be termed as a judgment and decree. 5. 14 and 21 of the Hindu Marriage Act, 1955 (Act XXV of 1955) and by referring to the provisions submitted that the petitions are filed under the Act and not a plaint as provided under the Code and as such the order finally disposing of the petition cannot be termed as a judgment and decree. 5. There is no dispute that under the High Court Rules of the Judicature at Patna, a First Appeal lies against the judgment and decree and miscellaneous appeal lies against the orders other than judgment and decree. 6. The only question for consideration is as to whether the impugned order is a decree or order. 7. The proceeding under the Act for restitution of conjugal rights, judicial separation, for declaring the marriage as void or voidable or for divorce are initiated by filing petitions under Secs. 9 to 13 respectively and the orders passed under the aforesaid sections are decrees. Sec. 23 of the Act also provides that the aforesaid proceeding has to be disposed of by grant of decree. Sec. 20 of the Act contains a provision with regard to contents and verification of petition and it provides that the statements contained in every petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints. Sec. 21 of the Act provides that subject to the other provisions contained in this Act and to such rules as the High Court make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code. In exercise of power under Sec. 21, the High Court has framed Rules known as "Hindu Marriage Act (XXV of 1955) Rules, 1956, and Rule 8 provides that in addition to the particulars required to be given under Order VII, Rule 1 of the Code which deals with a plaint, every petition should contain other facts as mentioned therein. Rule 9 says that the verification should be made in the same manner required by the Code and Rule 19 provides that the provisions of Order VIII of the Code which deals with written statement shall apply mutatis mutandis to such written statements filed on behalf of the respondent. Rule 9 says that the verification should be made in the same manner required by the Code and Rule 19 provides that the provisions of Order VIII of the Code which deals with written statement shall apply mutatis mutandis to such written statements filed on behalf of the respondent. Rule 23 of the Rules provides that the appeal under the Act shall be governed by the relevant rules in the Patna High Court General Rules and Circular Orders, Civil or by the Rules of the High Court at Patna, as the case may be, so far as they may be applicable. 8. The provision of appeal has been given under Sec. 28 of the Act which runs as follows : 28. Appeals from decrees and orders (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-sec. (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceeding under this Act under Sec. 25 or Sec. 26 shall, subject to the provisions of Sub-sec. (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order. 9. According to the said Section, the decree and orders under the Act have been dealt with separately. The decrees passed under the Act are treated to be the decree made by the Court in exercise of its original civil jurisdiction and the appeal will lie to the Court to which the appeal ordinarily lies from the decision of the Court given in exercise of original jurisdiction. Only orders passed under Secs. The decrees passed under the Act are treated to be the decree made by the Court in exercise of its original civil jurisdiction and the appeal will lie to the Court to which the appeal ordinarily lies from the decision of the Court given in exercise of original jurisdiction. Only orders passed under Secs. 25 and 26 of the Act which deal with permanent alimony and maintenance and custody of children respectively are appealable provided they are not interim orders and every such appeal will lie to the Court to which appeal ordinarily lies from the decision given in exercise of its original civil jurisdiction. 10. Thus, conjoint reading of the Act or the Rules it is clear that the proceedings for grant of divorce and other reliefs are initiated by filing petition but the petition should contain all the requirements of the plaint in addition to other matters mentioned in the Act. The provisions of Order VIII of the Code with regard to written statement fully apply to the written statement filed under the Act. The proceedings are to be conducted in the manner as provided under the Code subject to the provisions of the Act and the Rules. Final orders/judgments rendered in the proceedings under Secs. 9 to 13 of the Act are decrees and not orders. The orders are passed only with regard to permanent alimony as well as custody of children which may be interim or final order and only in case of final order, the appeal is maintainable. The decrees are appealable as the decree passed by a Court of original jurisdiction and the appeal will lie to the Court where appeal lies from the decree passed by the Court of original jurisdiction. 11. Sec. 2(2) of the Code defines the decree according to which the decree is a formal expression of a decision of a Court which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and which may be either preliminary or final. It also includes the rejection of a plaint and the determination of any question within Sec. 144 of the Code, but does not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It also includes the rejection of a plaint and the determination of any question within Sec. 144 of the Code, but does not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. The order has been defined under Sec. 2(14) of the Code which means a formal expression of any decision of a Civil Court which is not a decree. 12. No doubt, according to definition of the decree, a final determination has to be made in the suit, but in view of the provisions contained under Sec. 28 of the Act, the decrees passed under the Act are to be treated by deeming provision as decrees of the Court made in exercise of original civil jurisdiction under the Code and the appeal will lie to the same forum to which an appeal will lies from the decree passed by the Court in exercise of original jurisdiction. The final orders disposing of the matters under Secs. 9 to 13 cannot be treated as orders. The orders are only passed under Secs. 25 and 26 of the Act as stated above. At this stage, I would like to mention a decision of a Division Bench of this Court in the case of Antala Gope alias Antilal Gope V/s. Smt. Sarbo Gopain, reported in AIR 1962 Pat 489 (V 49 C 132) wherein question for consideration was as to the Court-fees which is payable on the memorandum of appeal against the order disposing divorce petition. The Division Bench held that the decree passed under Sec. 13 of the Act shall not be treated as a decree under the Code and so the appeal preferred against such decree shall not be treated as an appeal from an original decree. These observations were made with reference to unamended provision of Sec. 28 of the Act which runs as follows at Page 490 : "All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decree and orders of the Court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force:Provided that there shall be no appeal on the subject of costs only." 13. According to unamended provision, the decrees and orders made under the Act are enforced as a decree and order of the Court in exercise of the original civil jurisdiction and the appeals were to be filed according to provision of the law for the time being in force. The Division Bench of this Court held in paragraph 3 of the said judgment that if the word "a decree for divorce" or "a decree for judicial separation" was used in the Act in the sense of a decree, as defined in the Code, then there was no necessity to provide in Sec. 28 to the effect that such decrees. . . . .shall be enforced in like manner as the decree. . . . of the Court made in the exercise of the original civil jurisdiction are enforced. The inclusion of these words clearly indicates that the legislature did not use the word "decree" in Sec. 13 or any other Section in the same sense as the word has been defined in the Code. To us, it appears that the word has been used in its dictionary sense that is to say, in the sense of a decision or an edict." 14. The question regarding the appeal under unamended provision gave rise to conflicting judgment of different High Courts and thereafter the said provision was amended by Act 68 of 1976 and the provision relating to appeal against decrees and orders was incorporated under Sec. 28 and a new provision of Sec. 28-A of the Act was enacted for enforcement of the decrees and orders. After amendment, Sec. 28 of the Act is very clear and it provides separate appeal against the decrees and orders and further provides that the decrees rendered under the Act will be treated as a decree passed by Court in exercise of original jurisdiction. In other words, the decree shall be treated as a decree passed as defined under the Code and the First Appeal would lie against the said order. The decision in the case of Antala Gope alias Antilal Gope (supra) was rendered in different concept as stated above. 15. Thus, my conclusion is that final disposal of the matters under Secs. In other words, the decree shall be treated as a decree passed as defined under the Code and the First Appeal would lie against the said order. The decision in the case of Antala Gope alias Antilal Gope (supra) was rendered in different concept as stated above. 15. Thus, my conclusion is that final disposal of the matters under Secs. 9 to 13 of the Act are decrees and the appeal will lie against the said decree by treating them as a decree passed by Court in exercise of original jurisdiction and once it is treated as a decree by Court of original jurisdiction under the Act, the First Appeal is maintainable in terms of the Rules and the Code. 16. Accordingly, I fully agree with the view taken by the learned single Judge. There is no merit in this appeal and the same is dismissed. 17. P. SINGH, J.:- . I agree. Appeal dismissed.