Bombay High Court
Madhavi Madhukar Kulkarni vs Madhukar Ramchandra Kulkarni on 22 November, 1983
Equivalent citations: AIR1984BOM239, 1984(2)BOMCR26, (1983)85BOMLR600, AIR 1984 BOMBAY 239, (1984) 2 CIV LJ 118, (1984) 2 BOM CR 26, (1984) 1 DMC 84, (1984) MATLR 127, (1984) HINDULR 359, (1984) MAH LJ 34, (1984) MAHLR 656
JUDGMENT Dharmadhikari, J.
1. This first appeal has been placed before the Division Bench in view of the reference made by Agarwal, J. vide order dated 18th April, 1983.
2. When the matter was placed for hearing before the single Judge of this Court, learned counsel appearing for the respondent-husband raised a preliminary objection to the maintainability of the appeal itself. In support of his contention he placed reliance upon the decision of Mohta, J. in Bhaskar v. Mirabai, 1983 Mah LJ 115. Since the learned single Judge (Agarwal, J.) found it difficult to subscirbe to the view expressed by Mohta, J. in the said judgment, the matter was referred to Division Bench.
3. The respondent husband filed a petition under S. 13, Hindu Marriage Act for a decree of divorce against the appellant wife. It was contended by the respondent-husband that she had left the matrimonial home and went to reside with her parents without any rhyme or reasou and thus has deserted him. The appellant-wife resisted the petition. According to her she was always ready and willing to go and stay in the matrimonial home, but it was the husband who had refused to allow her to do so.
4. From the record it appears that iniually this Hindu Marriage petition was filed before the learned Civil Judge, Senior Division, Satara. The said petition was thereafter assigned by the District Judge in exercise of his powers under Sec. 16, Bombay Civil Courts Act, to learned Second Extra Assitant Judge, Satara, granted the decree of divorce. Being aggrieved by this order the appellant wife filed the first appeal before this court.
5. Shri Kachare, the learned counsel appearing for the respondent-husband contended before us that the view taken by Moha, J. in Bhaskar v. Meerabai, (1983 Mah LJ 115) is the only view possible in law and, therefore, the present appeal is not maintainable. On the other hand it is contended by Shri Divekar learned counsel appearing for the appellant that the view taken by Mohta, J. is wholly unsustainable. According to him, though the Division Bench decision of this court in Ambi Pundalik v. Manjula, AIR 1960 Bom 42 was not brought to the notice of Mohta, J. Relying upon the said judgment which is subsequently approved and followed by Mysore High Court in Mallappa v. Mallava, AIR 1960 Mys 292 and by the Orissa High Court in Nrusing Charan Nayak v. Smt. Hemant KUmari Nayak, AIR 1978 Ori 163, it is contended by Shri Divekar that the view taken by Mohta, J. requires rent.
6. He also contended is a case filed under the Hindu Marraige Act no valuation is contemplated nor it is necessary. Therefore, Motha, J, was obviously wrong in coming to the conclusin that forum of appeal should be decided on the basis of valuation. Shri Divekar further contended that Assistant Judge is part and parcel of the District, Court and, therefore, if it is held that theappeals lies to the District Judge against theorder passed by the Assistant Judge also, then it will practically amount to filing an appeal to the same court.
7. We find much substance in the contention raised Shri Divekar. It is quite obvious that the decision of the division Bench of this Court in Gangadhar v. Manjula (AIR 1960 Bom 42) was not brought to the notice of Mohta, J. The right of appeal is conferred by S. 28. Hindu Mariage Act. Section 28 as it stood befoire the amendment was in the following terms : -
"28. All decrees ande orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decree and orders of the court made in the exercise to 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 subkject of costs only".
This section has been substance by the amending Act 68 of 1976 as :
"28 (1) All decrees made by the court in any proceedeing under this Act shall subject to the provisions of sub-sec (3). Be appealable as decrees sof its original civil jurisdiction, and every such appeal shall lie to the court the to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil hurisdiction.
Orders made by the court in any proceeding under this ACt under S. 25 or s. 26 shall, subject to the provision 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.
There shall be no appeal under this section on the subject of costs only.
Every appeal under this thirty days from the date of the decree or order ".
It is not dispsuted by the learned counsel appearing for both sides that so far as the forum of the appeal is concerned, the provisions of amended or unamended section makes no difference. After reading the amended and unamended provisions we are satisfied that there is no substance difference between the original and the amended provisions, so far as the controversy involved in this first appeal is concerned. Under s. 28 an appeal as is to be regulated by the law for the time being in force. It is also an admitted position that sucjh law, so far as the State of Maharastra is concerned, is the Bombay City (sic) Civil courts Act, 1969 (18697) , Section 16 of the said Act reads as under :
"16 The district Judge may refer to any Assistant Judge subordinate to him orignal suits of which the subjects matter does not amount or value, applications or references under special Acts and miscellaneous applications.
The Assistant Judge shall have jurisdiction to try such suits and to dispose of such application or references.
Where the Assistant Judge's decrees and orders in such cases are appealable, the appeal shall lie to the district Judge or to the High Court according as the amount or value of the subject matter does not exceed or exceeds twenty five thousand rupees".
The words and expression "applications or references under the special Act" came to be inserted in Sec. 16 of the Act later on Under S. 16 of the Act, applicaion or reference under the special Act, can be assigned by the district Judge to Assistant Judges. On such assignment or reference the Assistant Judge has jurisdiction to dispose of such application . Section 3(b), Hindu Marriage Act, defines the expression "distict Court in the following terms :
"3 (b) District court means is in any area for which there is a civil court, that court, and in any other are the principles civil court of original jurisdiction, and inclueds anyb other civil court which may be specified by the State government by notification in the official gazette, as having jurisdiction in respect of the matters dealt with in this ACt".
Under s. 19 of the said ACt, a petition has to be presenbted to the district court within the local limits of whose original within the local of whose original civil jurisdiction the marriage was solemnisd or respondent resides, or the parties to the marriage last resided etc. It is also an admitted position that no notications is issud under of Assistant Judge is concerned. It is also not an inderpendent civil court of original jurisdiction. Part V of the Bombay Civil Courts ACt dals with ASsistant Judge. Appoinment of as ASsistant Judge is contemplated to as sist the district Judge. Then it is quqite obvious tha he becomes part and parcel of the same court. This seems to be the view taken by the Division Bench of this court in Ambi Pundalik v. Pundalik Shankar (AIR 1960 Bom 521). Under the c. P & Berar Courts Act, nomenclature and pharaselogoy used was 'Addtional District Judge', whereas in Bombay Civil Courts ACt, the nomenclature andd the pharaseology used is Assistant Judge. If the provision of these two enactment are read together, it is quite obvious that thee scheme of the Bombay city cvil Courts Act and that of the c.P. & Berer Courts Act, so far as the present controversy is concerned is identical. By bare reading of Chapter V of the Bombay Civil ourt Act. it is quite obvious that the Assistant JUdges has entertained the present Hindu Marriage petition, in they view of the order passed by the District Judge transferring the said hindu Marriage petition to him. No independent notification was ever issued under the Hindu Marriage ACt empowering the Assistant Judge to deal with the Hindu Marriage petition in his own right. Thereforee, in our opinion, the Division Benches of this court in Gangadhar v. Pundalik v. Pundalilk shankar (AIR 1960 Bom 521) were quite right in coming to the concllusion that wheever in a petition under the Hindu Marriage Act a decre is passed by a court Civil Judge, Senoir Division an appeal lies to the District Court and when a decree is passed by the Assistant Judge, then the appeal will lie to High Court since the District court. If the matter is decided by the Assistant JUdge., the question of vasluation is wholly irelevant because decided by the District Court itself. In this view of the mater, it will have to be held that the view taken by Mohan J. in Bhaskar v. Meerabai (1983 Mah Lj 115) is wholly untenable. IN the view which we have taken, therefore, the preoliminary objection raised by the repondent husband about the maintainability of the appeal must fail.
8. Since we have held that the appeal is maintainable, the papers and proceedings of this appeal be placed before the learned single Judge for deciding the appeal on merits.
9. However, in the circumstances of the fcase there will be no order as to costs in this reference.
10. Ordered accordingly.