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Gangadhar Rakhamaji Vs. Manjulal Gangadhar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberAppeal No. 234 of 1958
Judge
Reported in(1959)61BOMLR442
ActsHindu Marriage Act, 1955 - Sections 3 and 28; ;Bombay Civil Courts Act, 1869 - Sections 8
AppellantGangadhar Rakhamaji
RespondentManjulal Gangadhar
Appellant AdvocateS.B. Bhasme, Adv.
Respondent AdvocateV.D. Malpani and ;V.J. Jhaveri, Advs.
Excerpt:
hindu marriage act (xxv of 1955), sections 28, 3(b) - bombay civil courts act (bom. xiv of 1869), section 8 -- civil judge, senior division, notified as having jurisdiction in matters dealt with in act -- decree passed by such judge in petition for divorce or judicial separation -- appeal against such decree whether lies to district court or high court.;when a court of civil judge, senior division, notified by the state government as having jurisdiction in respect of matters dealt with in the hindu marriage act, 1955, passes a decree in a petition under the act, an appeal against the decree lies to the district court of the district and not to the high court. - - section 28 of the hindu marriage act, which provides for the appeals to be filed, states :all decrees and orders made by the..........marriage act of 1955 was filed by the petitioner gangadhar rakhamaji jadhav in the court of the civil judge, senior division, at ahmednagar. the petitioner alleged that he married the opponent in the year 1943 but that the opponent after having lived with him for four years had deliberately deserted him since 1948 and was living in adultery. the petition was opposed by the opponent. she denied desertion on her part and denied that she was living in adultery as alleged by the petitioner. she contended that she was living peacefully with the petitioner till 1953, but that some time about 11-11-1954 it was the husband who beat her and drove out of the house. the petition was dismissed by the learned civil judge, senior division, ahmednagar, on 31-12-1957, holding that the allegations on.....
Judgment:

V.S. Desai, J.

(1) This petition for a decree for divorce or judicial separation under the provisions of the Hindu Marriage Act of 1955 was filed by the petitioner Gangadhar Rakhamaji Jadhav in the Court of the Civil Judge, Senior Division, at Ahmednagar. The petitioner alleged that he married the opponent in the year 1943 but that the opponent after having lived with him for four years had deliberately deserted him since 1948 and was living in adultery. The petition was opposed by the opponent. She denied desertion on her part and denied that she was living in adultery as alleged by the petitioner. she contended that she was living peacefully with the petitioner till 1953, but that some time about 11-11-1954 it was the husband who beat her and drove out of the house. The petition was dismissed by the learned Civil Judge, senior Division, Ahmednagar, on 31-12-1957, holding that the allegations on which the petition was founded were not proved. The petitioner has, therefore, filed the present appeal from this decision and decree passed by the lower Court, under Section 28 of the Hindu Marriage Act.

(2) The first question to be considered is whether the appeal to this Court is competent. as has already been stated, the petition was filed in the Court of the Civil Judge, Senior Division, at Ahmednagar, and the decision and decree appealed from is of the Court of the Civil Judge, Senior Division. Section 28 of the Hindu Marriage Act, which provides for the appeals to be filed, states :

'All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force.'

Now, the 'law for the time being in force' for determining the forum of appeal is the Bombay Civil Courts Act. Under Section 8 of that Act an appeal from the decree or order of a Civil Judge, Senior Division, lies to the District Court except in the case of decisions in suits where the amount or value of the subject-matter exceeds ten thousand rupees. Under the Bombay Civil Courts Act, a District Court is presided over by a District Judge and is the principal court of original civil jurisdiction in the district within the meaning of the Code of Civil Procedure. In the present case, the decree having been passed by the Court of the Civil Judge, Senior Division of Ahmednagar, in a petition under the Hindu Marriage Act, the appeal should lie to the District Court of Ahmednagar.

(3) Act the Court of a Civil Judge, Senior Division, having jurisdiction in respect of matters dealt with in the Hindu Marriage Act is a 'District Court' as defined in S. 3(b) of the Act and in view of the meaning which the definition in S. 3(b) gives to the expression 'district court' an appeal from an order or decree of the court must lie to the High Court. A petition for judicial separation lies to the District Court under S. 10 of the Act and a petition for divorce as provided by S. 13 of the Act also lies to the district Court. The expression 'District Court' is defined in S. 3(b) of the Hindu Marriage Act as meaning 'in any area for which there is a city civil court that court, and in any other area the principal civil court of original jurisdiction' and as including 'any other civil court which may be specified by the State government by notification in the Official Gazette as having jurisdiction in respect of matters dealt with in the Act'. By a notification No. HMA-1055/52067 published in the Official Gazette on 1-9-1955, the Courts of Civil Judges, Senior Division, in the State have been notified as having jurisdiction in respect of matters dealt with in the Hindu Marriage Act within their respective jurisdictions. Mr. Bhasme argues that under the definition given in Section 3(b) of the Hindu Marriage Act the District Court means the principal civil court of original jurisdiction in any given area; thus in areas where there is a city civil court it is that court and in any other area it is the district court as understood under the Civil Procedure Code as also under the Bombay Civil Courts Act. By reason of the inclusive part of the definition in Section 3(b), says Mr. Bhasme, an inferior civil court when notified by the State Government as having jurisdiction in respect of matters dealt with in the Act comes to be included within the meaning of the term 'district court' as defined by the earlier part of the definition. Mr. Bhasme, therefore, argues that when a court of Civil Judge, Senior Division, having jurisdiction under the Hindu Marriage Act, decides a petition for judicial separation or divorce, its decree must be regarded as that of a district court, i.e., of a principal civil court of original jurisdiction in the district, and since under the Bombay Civil Courts Act the appeal from the district court, which is the principal civil court of original jurisdiction, lies to the High Court. We cannot accept this argument of Mr. Bhasme. The definition of the expression 'district court' given in Section 3(b) of the Hindu Marriage Act says which courts are meant and included within that expression as used in the Act. It says that by the expression 'district court' are meant in the first place a city civil court in the area in which there is such court and in any other area the principal civil court of original jurisdiction. The principal civil court of original jurisdiction in the areas which are districts is the Court of the District Judge of the District. Thus under this part of the definition all city civil courts and all courts of the District Judges have jurisdiction to deal with matters under the Hindu Marriage Act. The definition then proceeds to say that in addition to these courts other civil courts will also be included in the expression 'district court' if such other civil courts are notified by the State Government in the Official Gazette as having jurisdiction in respect of matters dealt with in the Act. Thus under the expression 'district court' as used in the Hindu Marriage Act comes all city civil courts, all courts of District Judges of the district and also other civil courts notified by the State Government in the manner provided. It is not correct to say, as contended by Mr. Bhasme, that any civil court in the district other than the principal civil court of original jurisdiction, when notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act, becomes a 'district court' as meaning the principal civil court of original jurisdiction for the purposes of the Hindu Marriage Act by virtue of the definition given in S. 3(b). It is the court to which petitions under the Hindu Marriage Act lie and which had jurisdiction in respect of matters dealt with in the Act. Since in the various provisions of the Act the court which has jurisdiction in matters dealt with in the said provisions is referred to as the 'district court' the inclusive part of the definition says that civil courts other than the principal civil court of original jurisdiction when notified by the Government will be included within the expression 'district court' as used in the Act. The Court of the Civil Judge, Senior Division, therefore, which is notified by the State Government as having jurisdiction in matters dealt with under the Hindu Marriage Act, is a 'district court' within the definition of S. 3(b) of the Hindu Marriage Act, but it is not the principle civil court of original jurisdiction, nor does it exercise its jurisdiction as such principle civil court of original jurisdiction. Section 28 of the Hindu Marriage Act leaves the forum of appeal to be determined under the law for the time being in force which, in the present case, is the Bombay Civil Courts Act. The forum of appeal from the order or decree of the Court of the Civil Judge, Senior Division, under the Bombay Civil Courts Act is the court of the District Judge of the District. In the present case, therefore, which was decided by the Civil Judge, Senior Division, the appeal lies to the Court of the District Judge and not to the High Court.

(4) We, therefore, hold that the appeal filed in this Court is not maintainable and direct that the appeal memo and the papers filed with if be returned to the appellant for presentation to the proper Court. The appellant will pay the costs of the respondent in this Court.

(5) The respondent has made an application, which is Civil Application No. 3342 of 1958. In this application she has prayed that the appellant be ordered to pay her a sum of Rs. 250 as costs and such amounts by way of maintenance pendente lite as this Court may deem fit. Since we have held that the appeal is not competent in this Court, the application also cannot be maintained in this Court. We, therefore, make no order on the application. There will be no order as to costs in this application.

(6) Order accordingly.


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