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Annapurna Dei Vs. Nabakishore Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 41 of 1963
Judge
Reported inAIR1965Ori72
ActsHindu Marriage Act, 1955 - Sections 13(1) and 28; Code of Civil Procedure (CPC) - Sections 151
AppellantAnnapurna Dei
RespondentNabakishore Singh
Appellant AdvocateD.C. Sahu, Adv.
Respondent AdvocateN. Mukherji, Adv.
DispositionRevision allowed
Cases ReferredSnehalata v. Jagadish
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........the case and the trial was complete. without delivering a final judgment, the learned district judge passed the following interlocutory order, after discussion of some of the evidence, on 25-3-1963. the miscellaneous appeal has been filed against this order. 'i would order that she should undergo treatment under any specialist for six months and if at the end of that she is not free from the disease, hers is a bad case coming under 20 per cent that are incurable and thereafter the husband would be free to bring it to the notice of the court for passing a decree of divorce. in the meantime the petitioner would pay rs. 60/- as a lump sum to the respondent for her treatment besides rs. 10/- he is paying for her maintenance. i realise such an order may not be strictly legal, but in the.....
Judgment:
ORDER

G.K. Misra, J.

1. The appellant is the wife of the respondent who filed an application under Section 13(1)(iv) of the Hindu Marriage Act (Act 25 of 1955) hereinafter referred to as the Act, asking for dissolution of the marriage by a decree of divorce on the ground that the appellant has been suffering from a virulent and incurable form of leprosy for a period not less than three years immediately preceding the presentation of the petition. The application was opposed by the appellant. Evidence was gone into the case and the trial was complete. Without delivering a final judgment, the learned District Judge passed the following interlocutory order, after discussion of some of the evidence, on 25-3-1963. The Miscellaneous Appeal has been filed against this order.

'I would order that she should undergo treatment under any specialist for six months and if at the end of that she is not free from the disease, hers is a bad case coming under 20 per cent that are Incurable and thereafter the husband would be free to bring it to the notice of the Court for passing a decree of divorce. In the meantime the petitioner would pay Rs. 60/- as a lump sum to the respondent for her treatment besides Rs. 10/- he is paying for her maintenance. I realise such an order may not be strictly legal, but in the circumstances of the case for the benefit of both the parties and in consonance with the spirit of law as contemplated under Section 23 of the Hindu Marriage Act, this order is passed and the result of the suit would abide the report the respondent gets after her treatment and in case of failure of any report, it would automatically operate against her.'

Mr. Sahu contends that the aforesaid order is without jurisdiction and contrary to law.

2. Mr. Mukherji concedes that there is no section under the Act under which such an interlocutory order can be passed. He, however, contends that the order can be justified under Section 151, Civil Procedure Code, as the C. P. Code has been made applicable under Section 21 of the Act. I am unable to accept such a contention. That the order of the learned District Judge is illegal would be manifest from Section 13(1)(iv) of the Act which enacts--

13. Divorce--(1) Any marriage solemnised, whether before or after the commencement of this Act may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

X X x XX

(iv) has, for a period of not less than three years immediately preceding the presentation of the petition been suffering from a virulent and incurable form of leprosy;

In this case the onus is on the husband to establish the ingredients of the section for obtaining a decree for divorce. It is not disputed that the wife has been suffering from leprosy for a period of not less than three years immediately preceding the presentation of the petition. The onus is on the hubsand to further establish that the leprosy is virulent and incurable. There is absolutely no provision in the Act for the court to Keep the patient under observation or to give opportunity to the patient for a cure before granting a decree of divorce. The court is not to step into the shoes of a party and assist in procuring further evidence.

Section 151, C. P. C. prescribes that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. This section, however widely couched, has never been resorted to for the purpose of assisting parties to establish their case by creation of evidence. Section 151, C. P. C. has absolutely no application. The order passed by the learned District Judge militates against the very object of Section 13(1)(iv) of the Act. Even if the husband-petitioner succeeds in proving that the wife suffers from a virulent form of leprosy, the petitioner cannot succeed unless it is further proved that it is an incurable type. Very stringent conditions have been imposed by the Legislature to prevent dissolution of marriage on frivolous grounds or without responsibility being taken by one of the partners for the cure of a curable disease. The order of the learned District Judge cannot, therefore, be supported either under the Act or under Section 151, C. P. C.

3. A preliminary objection was raised by Mr. Mukherjee that as the impugned order is not in any proceeding under the Act and is one under Section 151, C. P. C., no appeal lies and only a revision is maintainable. Section 28 of the Act says that 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. Whether a final order under Section 24 of the Act is appealable or not came up for consideration in Misc. Appeal No. 66 of 1962, (Orissa), Snehalata v. Jagadish, where it was held, after review of conflicting authorities, that an appeal lay. Section 28 of the Act applies to all decrees and final orders passed by a court in any proceeding under the Act. The impugned order is, however, not a final order passed by the learned' District Judge in any proceeding under the Act or under any particular section. No appeal lies against an interlocutory order. Whether the learned District Judge acted under Section 151, C. P. C. or otherwise, a revision under Section 115 C. P.C. is maintainable. The preliminary objection has force. The appellant has, however, been permitted to convert the Miscellaneous appeal into a Civil Revision by filing a formal application and on payment of balance court-fees. The Miscellaneous appeal is this converted into a Civil Revision.

4. In the result, the impugned order of the learned District Judge is set aside and he is directed to deliver a final judgment on the evidence on record in accordance with law as soon as possible after giving opportunities to the parties to present their arguments.

The Civil Revision is allowed, but there will be no order as to costs.


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