1. This appeal is directed against the judgment rendered by Ahmedabad City Civil Court in H. M. P. No. 43 of 1980 by which the marriage between the parties was ordered to be dissolved on 9-10-1980. It appears that there was marriage between the parties which was celebrated according to Hindu rites on 5-5-1975. Thereafter the appellant had filed Hindu Marriage Petition No. 103 of 1977 for obtaining decree of divorce on the ground of desertion and cruelty and the respondent had filed Hindu Marriage Petition No. 186 of 1977 for obtaining relief of restitution of conjugal rights against the appellant. Both the petiti6ns were heard together and they were disposed of by one judgment. The petition of the appellant was dismissed by the court while respondent's petition for restitution of conjugal rights was ganted. This judgment was delivered on 31-3-1978.
2. The appellant filed First Appeal No. 552 of 1978 and the respondent filed cross-objections in that appeal. Ultimately the appeal and the cross-objections were withdrawn on 30-1-1980. Thereafter Petition No. 43 of 1980 was filed by the respondent under the provisions contained in S. 13(1A)(ii) of the Hindu Marriage Act. The main objections which were raised by the appellant in the trial court were that the petition was premature inasmuch as one year had not elapsed considering the date of withdrawal of the appeal and the cross-objections which was 30-1-1980 while the petition for dissolution of marriage was filed on 4-2-1980. The second ground was that there was a legal impediment created by S. 23 of the Hindu Marriage Act and, therefore, also the petition was not maintainable. The learned City Civil Judge did not agree with the contentions raised and, therefore, passed an order by which the marriage between the parties was ordered to be dissolved. That order is now bring challenged by filing this appeal.
3. We have heard the learned advocate Shri Memon who appeared on behalf of the appellant at great length. His first submission was that one year should be considered from the date on which the proceedings came to an end in the High Court i.e. 30-1-1980.
4. We may first refer to S. 13(1A)(ii) under which the petition was filed. Section 13(1A)(ii) of the Hindu Marriage Act runs as under:-
1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) xxx xxx xxx xxx (ii) that there has been no-restitution of conjugal rights as between the parties to the marriage for a period of two years (now one year) or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.'
Now, if we consider the date on which the City Civil Court passed decree for restitution of conjugal rights this petition is after a lapse of one year inasmuch as decree for restitution of conjugal rights was passed on 31st Mar. 1978 and the petition came to be filed on 4-2_ -1980. The learned advocate Shri Memon, for the appellant submitted that the litigation in the High Court came to an end on 30-1-1980 and, therefore, the petition was required to be filed after a period of one year from that date. The argument canvassed was that it is an appellate decree which gives rise to the cause of action and not the original decree,
5. to 9. xxx xxx xxx
10. The question, therefore, which requires consideration is as to whether any decree was passed in at-peal, The word 'decree' is defined in See, 2 (2) of the Civil P. C. which. runs as under,.-
'2. In this Act, unless there is anything repugnant in the subject or context,-
xxx xxx xxx (2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to ail or any of the matters in controversy in the suit and may be either preliminary or final, It shall be deemed to include the rejection of a plaint and the determination of any question within S. 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, Or
(b) any order of dismissal for default.'
In fact what we find in that after the first judgment dt. 31-3-1978 the appellant had filed appeal against which cross-objections were filed. Ultimately when the matter came up for hearing on 30-1-1980 neither the appeal nor the cross-objections were pressed. The result was that the appeal and the cross objections were dismissed with no order as to costs for want of prosecution. Could under the above circumstances be stated that the appellate court passed any decree on 30-1-1980? The answer must be in the negative. We may refer to a case of Chandri Abdul Maiid v. Jawahir Lal reported in AIR 1914 PC 66. The following observations were made in that case:-
'An order of Privy Council dismissing an appeal for want of prosecution does not deal judicially with the matter of the suit and can in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognises authoritatively that the appellant has not complied with the conditions under which the appeal was open to him, and that therefore he is in the same position as if he has not appealed at all.' The same view was expressed in another case Mt. Deoki v. Jwala Prasad reported in AIR 1928 All 679. The observations were as under:- 'The order granting permission to withdraw an appeal under 0. 23, R. 1, is not a decree so as to supersede the decree of a Court below. When an Appellate Court does not judicially deal with the matter of a suit but merely permits an appeal to be withdrawn so that the decree of the Court below is left intact it cannot be said that it has confirmed the decision appealed from. it merely recognises authoritatively that the appellant does not wish to go on with his appeal.'
Now, therefore, in this particular case what we find is that though the decree dt. 31-3-1978 was challenged by filing two appeals Nos. 532 of 1978 and 553 of 1978 and though cross-objections were filed ultimately on 30-1-1980 the appeals were not pressed, so also the cross-objections were not pressed and therefore, they were required to be dismissed for want of prosecution. The appellate Court, therefore, was not required to adjudicate or enter into the merits of the case at all. We have already quoted above the definition of 'decree' where it has been specifically stated it must be an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in the suit. Now, therefore, in this matter as the appeals and cross-objections were withdrawn the appellate Court was neither called upon nor required to adjudicate any question in controversy between the parties. The resultant effect was that the decree passed by the triall Court was neither required to be reversed, modified or confirmed, In fact nothing was required to be done in regard to that decree and no appellate decree was required to be passed. The dismissal of the appeals and the cross- objections for want of prosecution would merely amount to the recognition of the existing decree and the appellants remained in the same position as if they had not appealed at all. In this view of the matter the first contention of the learned advocate Shri Memon that the petition was premature fails and is rejected.
11. The second contention raised is in regard to S. 23(1)(a) of the Hindu Marriage Act which reads as under:-
'23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'
After referring to this section it was submitted that by consent of the parties when the appeals and cross-objections were withdrawn the decree in Hindu Marriage Petition was ordered not to be executed for a period of one month from the date of the, order i.e. 30-1-1980. The learned advocate Shri Memon submitted that the petition filed within that period would amount to wrongful act so far as the petitioner is concerned and, therefore, he would not be entitled to any relief. Presenting a petition u/s. 13 UAI
(ii) cannot if be considered to be a bar of giving consent not to execute the decree for a period of one month. The operation of the decree was not stayed, The decree even could not be suspended except for one purpose and that purpose was the Purpose of execution for a limited Period. Filing a petition u/s. 13 (1A) Oil of the Hindu Marriage Act cannot be suggested to be an execution petition. Therefore, the second submission also fails.
12. x x x x
13. In the result the appeal fails and Is dismissed with no order as to costs.
14. Appeal dismissed.