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Girwar Singh Nirmal Vs. Smt. Premavati - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 367 of 1969
Judge
Reported inAIR1972All474
ActsHindu Marriage Act, 1955 - Sections 3, 19 and 28; Provincial Small Cause Courts Act, 1887
AppellantGirwar Singh Nirmal
RespondentSmt. Premavati
Appellant AdvocateH.P. Varshani, Adv.
Respondent AdvocateS.J. Hyder and ;V.K. Barman, Advs.
DispositionRevision dismissed
Excerpt:
.....ii of provincial small cause courts acts, 1887 - petition of divorce can be entertained by judge small causes court - nothing is there in provincial small causes court which bar the jurisdiction of judge small causes court maintainable. - - ' an application for divorce has to be moved on a petition under section 19 before district court on the grounds enumerated in section 13. the state government under section 3(b) is authorised to invest jurisdiction under the act to any other civil court as well. from a perusal of the judgment of the learned district judge it appears that he heard the parties on the findings of fact as well and has confirmed the finding of the trial court. i fully agree with the finding of the trial court and of the lower appellate court and am of the..........judge, aligarh. the applicant had filed an application for divorce under section 13 of the hindu marriage act and in the alternative for judicial separation on the ground of desertion, cruel treatment, callous behaviour of the opposite party and leading an immoral ana adulterous life. opposite party contested the application. the application was decided by the judge small causes court, aligarh and was dismissed. an appeal was filed against the judgment of the trial court. learned district judge converted the appeal into revision holding that the appeal was not maintainable. learned district judge, however, disposed of the revision on merit and dismissed the revision. hence this revision by the husband.2. first contention of the learned counsel for the applicant is that the court.....
Judgment:
ORDER

J.S. Trivedi, J.

1. This is a revision of the husband against the judgment of the District Judge, Aligarh. The applicant had filed an application for divorce under Section 13 of the Hindu Marriage Act and in the alternative for judicial separation on the ground of desertion, cruel treatment, callous behaviour of the opposite party and leading an immoral ana adulterous life. Opposite party contested the application. The application was decided by the Judge Small Causes Court, Aligarh and was dismissed. An appeal was filed against the judgment of the trial Court. Learned District Judge converted the appeal into revision holding that the appeal was not maintainable. Learned District Judge, however, disposed of the revision on merit and dismissed the revision. Hence this revision by the husband.

2. First contention of the learned counsel for the applicant is that the Court below was wrong in holding that no appeal lay. His contention is that Section 28 of the Hindu Marriage Act provides an appeal from the decree of the trial Court and the power of an appeal provided by the special Act could not be taken away because the decision was given by a Judge who was described as Judge Small Causes Court. His further contention is that in spite of a notification under Section 3(b) of the Hindu Marriage Act conferring power on the trial Court, the Judge Small Causes Court had no jurisdiction to decide the application for divorce, because Article 37 of Schedule II expressly excludes the jurisdiction of the Court of Small Causes from trying a suit for a divorce. Section 3(b) of the Hindu Marriage Act defines 'District Court' in these words;

'District Court means, 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 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 within this Act;'

An application for divorce has to be moved on a petition under Section 19 before District Court on the grounds enumerated in Section 13. The State Government under Section 3(b) is authorised to invest jurisdiction under the Act to any other Civil Court as well. Hindu Marriage Act is self-contained special Act for special purposes. It is not disputed that Judge Small Causes Court who was principally a Civil Judge was invested with the powers of District Court also.

3. Firstly, therefore there is nothing in the Provincial Small Causes Court Act that a Judge Small Causes Court cannot be invested with the jurisdiction provided in Section 3(b) of the Hindu Marriage Act. Item 37 of Schedule II of the Provincial Small Causes Courts Act excludes the jurisdiction of the Small Causes Court in respect of a suit for restitution of conjugal rights, for custody of a minor or for a divorce. The suit contemplated under the Provincial Small Causes Courts Act means a suit and will not include a petition under Section 10 or 13 of the Hindu Marriage Act. Moreover, as stated earlier Judge Small Causes Court was exercising a special jurisdiction under Section 3(b) of the Hindu Marriage Act. Merely because the trial Court described himself as Judge Small Causes Court, his order passed in exercise of the special jurisdiction Court will not be ineffective and without jurisdiction. For the purposes of Hindu Marriage Act the Judge Small Cause Court was a Civil Court and irrespective of any provision in the Provincial Small Causes Courts Act an appeal would be maintainable, against his order under Section 28 of the Hindu Marriage Act.

4. I would have, therefore, allowed the revision and remanded the appeal for disposal by the lower appellate Court had lower appellate Court not disposed of the revision bn merit. From a perusal of the judgment of the learned District Judge it appears that he heard the parties on the findings of fact as well and has confirmed the finding of the trial Court. I have also been taken through the record of the case and in my opinion the findings of both the courts below do not suffer from any error of law. I fully agree with the finding of the trial Court and of the lower appellate Court and am of the opinion that the applicant has miserably failed to substantiate any points raised by him in support of his petition.

5. This revision, therefore, has no force and is accordingly dismissed with costs.


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