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 subscribe 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 decreeeeee 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 reason 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 annually 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 Assistant Judge, Satara, granted the decreeeeee 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 Ambitt 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 : AIR1978Ori163 , 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 Marriage Act no valuation is contemplated nor it is necessary. Therefore, Motha, J, was obviously wrong in coming to the conclusion 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 the appeals lies to the District Judge against the order 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 Marriage Act. Section 28 as it stood before the amendment was in the following terms : -
'28. All decreeeeees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decreeeeee 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 subject of costs only'.
This section has been substance by the amending Act 68 of 1976 as :
'28 (1) All decreeeeees made by the court in any proceeding under this Act shall subject to the provisions of sub-sec (3). Be appealable as decreeeeees 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 decreeeeee or order '.
It is not disputed 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 such 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 original 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 decreeeeees 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, application 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 'district 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 includes any 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 presented to the district court within the local limits of whose original within the local of whose original civil jurisdiction the marriage was solemnised or respondent resides, or the parties to the marriage last resided etc. It is also an admitted position that no notifications is issued under of Assistant Judge is concerned. It is also not an independent civil court of original jurisdiction. Part V of the Bombay Civil courts ACt deals with Assistant Judge. Appointment of as Assistant Judge is contemplated to as sist the district Judge. Then it is quite 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 Ambitt Pundalik v. Pundalik Shankar AIR 1960 Bom 521. Under the c. P & Berar courts Act, nomenclature and phraseologyused was 'Addtional District Judge', whereas in Bombay Civil courts ACt, the nomenclature and the phraseology 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 civil courts Act and that of the c.P. & Berar courts Act, so far as the present controversy is concerned is identical. By bare reading of Chapter V of the Bombay Civil ccccccourt Act. it is quite obvious that the Assistant Judgeshas 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 conclusion that whenever in a petition under the Hindu Marriage Act a decreeeee is passed by a court Civil Judge, Senior Division an appeal lies to the District court and when a decreeeeee 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 valuation is wholly irrelevant 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 preliminary objection raised by the respondent 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 case there will be no order as to costs in this reference.
10. Ordered accordingly.