1. The question for consideration in this case is whether an appeal from the order of a Subordinate Judge 1st Class upon an application under Section 10 of the Hindu Marriage Act, 1955, lies to the High Court or to the Court of the District Judge.
2. The matter came up for consideration in the original instance before Dua J. and was referred by him to a larger Bench, because he felt that the matter was of considerable importance and was likely to affect a large number of cases. We have heard counsel for both sides and have given the matter our anxious consideration.
3. Applications under Section 10 must be presented to the District Court. The ''District Court' has been defined in Clause (b) of Section 3 of the Hindu Marriage Act as follows:--
' '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 with in this Act.'
There is a notification empowering Subordinate Judges to entertain applications under Section 10, and in the present case the application was heard and disposed of by a Subordinate Judge of the first class. Ordinarily, appeals from the orders of Subordinate Judges of the first class lie to the Court of the District Judge and in some cases to the Court of the Senior Subordinate Judge. It is, however, urged before us that the appeal in the present case lies to the High Court and not to the Court of the District Judge or to the Court of the Senior Subordinate Judge.
Our attention has been drawn to the provisions of Sections 38 and 39 of the Punjab Courts Act which deal with appellate jurisdiction in civil cases. Section 38 provides that an appeal from the order of a District Judge shall lie to the High Court, and the argument is that the Court, which deals with matters under the Hindu Marriage Act, is to be deemed the Court of a District Judge and, therefore, appeals from that Court lie to the High Court. Section 39(1) is in the following terms:--
'39(1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie-
(a) to the District Judge where the value of the original suit in which the decree or order was made did not exceed five thousand rupees; and
(b) to the High Court in any other case.' It is argued that in the present case no valuation was put on the application under Section 10 and so it cannot be said that the value did not exceed Rs. 5,000/-. In this view of the matter also the appeal (so it was argued) would He to the High Court and not to the District Judge.
4. On the other hand, it has been arguedthat the vesting of the jurisdiction to hear applications under the Hindu Marriage Act does not raise the status of the Court. The Court hearing the application remains the Court of the Subordinate Judge and, therefore, appeals from orders passed by it must lie to the Senior Subordinate Judge or the District Judge- Our attention was drawn to a Madras case, Valliamal Animal v. Periaswami Udayer, AIR 1959 Mad 510, in which it was held that an appeal from an Order passed on an application under the Hindu Marriage Act lies not to the High Courts but to the District Court. The Madras Civil Courts Act, however, is in somewhat different terms. Section 13 of that Act provides that appeals shall lie from the Courts of Subordinate Judges to the District Court except when the amount or value of the subject-matter exceeds Rs. 10,000/-. Thus, if no valuation is put upon a suit or an application, it cannot be said that Its subject-matter exceeds Rs. 10,000/-. Ramchandra Iyer J. observed-
'In regard to a matrimonial dispute, it cannot be stated that the subject-matter of the dispute exceeds Rs. 10,000/-. That is a matter which is not expable of valuation. It would, therefore, appear that if a subordinate Judge were given jurisdiction under the Act, an appeal from his decision would under Section 13 of the Madras Civil Courts Act lie only to the District Judge.'
The learned Judge repelled the argument that the Court of the Subordinate Judge must be deemed to be the Court of the District Judge merely because it was invested with jurisdiction to hear matters under the Hindu Marriage Act. Section 28 of the Hindu Marriage Act makes provision for appeals, but it does not define the forum to which appeals are to be preferred. Therefore, we must have recourse to the provisions Of the Punjab Courts Act to determine the appellate forum.
In the erstwhile State of Bombay the relevant section of the Civil Courts Act was in the same terms as the section of the Madras Act. A Division Bench of the Bombay High Court, interpreting this section, took the view that appeals from the orders of a civil Judge lay to the District Court and not to the High Court. Gosain J. has taken the contrary view in two cases which he dealt with sitting singly. He held in F.A.F.O. No. 194-M of 1958, D/- 22-9-1959 (Punj) . and F.A.F.O. No. 28-M of 1959, D/- 17-3-1960 (Punj) that the ap-peal lay to the High Court and not to the District Court.
It seems to me that the provisions of Sections 38 and 39 of the Punjab Courts Act. do not warrant the filing of appeals under the Hindu Marriage Act to the Court of the District Judge. The insolvency law does not provide an adequate analogy, because Section 73 of the Provincial Insolvency Act, which deals with appeals, specifically provides that where an order in the exercise of insolvency jurisdiction is made by a Court subordinate to the District Court, the appeal would lie to the District Court, and where the order is made by the District Court, the ap-peal would lie to the High Court. There is no such provision in the Hindu Marriage Act.
5. I am, therefore, of the view that the present appeal lies to the High Court. The matter will now be placed before a learned Single Judge for disposal according to law.
Gurdev Singh, J.
6. I agree.
(Note: After the question of the competency of the appeal in the High Court was decided by the Division Bench (Khogla C. I. and Gurdev Singh J.) on 22-8-1960, the appeal came up for decision on the merits before Dua, J. He held, on 11-11-1960, after considering the evidence in the light of the legal position enunciated by the Supreme Court in Bipin Chandra Jaisinghbai Shah v. Prabhavati, (S) AIR 1957 SC 176, in agreement with the Court below, that the appellant had failed to establish the essential requisites of desertion by the respondent within the contemplation of Section 10 of the Hindu Marriage Act and dismissed the appeal. As the question relating to the essential conditions for establishing 'desertion' is concluded by the authority of the Supreme Court in the instant case and rested entirely on the appreciation of evidence tendered by the parties, the judgment of the Single Judge (Dua, J.), dated 11-11-1960 is not being reported here --Ed.)