AMBUJAM Vs. T S RAMASWAMY

JUDGEMENT

(1.) This appeal under clause 10 of the letters patent is directed against the judgment of a learned single Judge of this court, whereby accepting the appeal of the respondent herein, the petition of the appellant herein for judicial separation under section 10 the Hindu Marriage Act, 1955 (hereinafter called the Act) was dismissed.

(2.) The appellant and the respondent are Hindus who were married at Delhi on 2nd May, 1960. After their marriage, they resided together for some time as husband and wife at Delhi as well as Chittor. The respondent thereafter went to Madras in November 1960 and it is claimed by him that he had gone there to study law. The appellant was left behind at Delhi. In December 1961 the appellant was taken to Madras by her step-mother to the house of the respondent, who was residing at No. 60 Bhaktavatsalam Nagar in Madras. After staying for some time in Madras the step-mother came back leaving the appellant with respondent. The appellant claims that she stayed with the respondent at Madras for about six months and thereafter went to Waltair at the instance of the respondent, but during her holidays she kept on visiting the respondent at Madras. She stayed in Waltair till March 1964. Then she came away to Delhi and two months later resigned her appointment at Waltair where she was working. After her return to Dilhi, the appellant kept on writing letters regularly to the respondent expressing a keen desire to be with him, but the respondent neither called her to him nor fetched her from Delhi. This state of things continued till December 1964 whereafter the appellant stopped writing to the respondent and in March 1965 filed a petition for judicial separation under section 10 of the Act on the grounds of cruelty and desertion against the respondent. This petition was, however, withdrawn on 17th October, 1966 with liberty to file a fresh petition on the same cause of action as there was likelihood of the petition being dismissed on a technical ground. On 27th October, 1966 the appellant filed another petition under section 10 of the Act claiming judicial separation from the respondent on the grounds of cruelty and desertion. The Trial Court allowed the petition but on appeal the decision was reversed leading to the filing of the present Letters Patent Appeal.

(3.) A preliminary objection was mooted that no appeal is Competent under clause 10 of the Letters Patent. The contention was that unless a certificate was granted by the learned single judge of this court that the case was a fit one for appeal, no appeal could be preferred against the decision of the learned single Judge of this court. There is no force in this contention inasmuch as on a reading of clause 10 of the Lettes Patent of the Punjab High Court which are in force for this court also, it is manifest that a further appeals from the Judgment, Decree or Order of a single Judge of this Court made in exercise of appellate jurisdiction can be filed keeping in view the provisions of section 28 of the Act read with sections 3(b), 19 and 21. The appeal to the High Court from the Decrees and Orders passed in petitions under the Act lie either under section 96 of the Code of Civil Procedure or section 39 of the Punjab High Court's Act read with section 28 of the Act, and a further appeal from the order and judgment of the single Judge who hears the the first appeal would lie to a Division Bench. We are fortified in coming to this conclusion by a Bench decision of the Punjab and Haryana High court 171 Smt. Dassi versus Dhani Ram Thakur, AIR 1969 P&H 25(1). A similar view was also taken by a Full Bench of the Patna High Court in Ramji Singh v., Mussammat Chhulghhana Kuer, A. I. R. 1958 Patna 655.-(2).