UMIYABEN Vs. AMBALAL LAXMIDAS

JUDGEMENT

(1.) This appeal raises a rather difficult question relating to construction of sec. 28 of the Hindu Marriage Act 1955 Some three years back this Court had occasion to observe in regard to this Act that it is a piece of legislation which is not noted for accurate or artistic draftsmanship and this is yet another occasion where we are constrained to make the same observation. The question of construction which arises is whether there is a right of second appeal from a decree passed by the District Court in appeal from a decree passed by the Civil Judge Senior Division in a proceeding for judicial separation under sec. 10 of the Act. The question is a question of some importance because the effect of its decision would not be confined merely to a proceeding for judicial separation under sec. 10 but would extend also to other proceedings under the Act. The appellant who is the original plaintiff filed a petition against the respondent her husband who is the original defendant for judicial separation under sec. 10 on two grounds namely (1) that the respondent had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; and (2) that the respondent had treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. The petition was filed in the Court of the Civil Judge Senior Division Broach since a notification had been issued by the State Government specifying the Court of the Civil Judge Senior Division Broach as the Court having jurisdiction in respect of the matters dealt with in the Act as provided in sec. 3(b) of the Act. The learned trial Judge on a consideration of the evidence held that the respondent had deserted the petitioner since July 1952 and thaW the petitioner was entitled to obtain a decree for judicial separation. So far as the ground of cruelty was concerned the learned trial Judge held that cruelty was not established but this finding did not affect the petitioner since the learned trial Judge held that the petitioner was entitled to obtain a decree for judicial separation on the ground of desertion. The respondent thereupon preferred an appeal in the District Court Broach. The learned District Judge on an appreciation of the evidence took the view that neither desertion nor cruelty were established by the petitioner and in that view of the matter the learned District Judge allowed the appeal and dismissed the suit with costs. The appellant thereupon preferred the present Second Appeal to this Court.

(2.) When the appeal first came up for hearing before Diwan J. sitting as a single Judge a preliminary objection against the maintainability of the appeal was raised on behalf of the respondent. The contention was that there was no right of second appeal against a decree passed in appeal by the District Court and that the appeal preferred by the appellant was therefore not competent. This contention was disputed on behalf of the appellant who maintained that not only was a second appeal competent but that it was much wider in scope in that it did not suffer from any of the limitations imposed by sec. 100 of the Code of Civil Procedure and that it lay not only on questions of law but also on questions of fact. Since these rival contentions raised a rather important question which depended for its determination to a large extent on the true construction of sec. 28 of the Act Divan J. referred the matter to a Division Bench and that is how the appeal has come up before us for hearing.

(3.) We have already briefly set out the respective contentions of the parties showing how the question arises before us but it is necessary at this stage to indicate a little more elaborately the lines followed by the arguments in support of the respective contentions. So far as the respondent is concerned it was contended on his behalf that an appeal being a creature of statute the right of second appeal against a decree passed in appeal by the District Court in a petition for judicial separation under sec. 10 must be found in some statute; that sec. 100 of the Code of Civil Procedure did undoubtedly confer a right of second appeal against an appellate decree but in order that that provision should be applicable the appellate decree had to be a decree within the meaning of sec. 2(2) of the Code which the decree in a petition for judicial separation under sec. 10 was clearly not since it was not the formal expression of adjudication in a suit:- the only other statutory provision which could be relied upon as conferring a right of second appeal was sec. 28 of the Act but on a true construction of that section the right of appeal conferred by it was limited only to a first appeal against an original decree and did not extend to a second appeal against a decree passed in first appeal and no second appeal therefore lay against a decree passed in first appeal in a petition for judicial separation under sec. 10. The answer given on behalf of the appellant to this contention was a three-fold one. In the first place it was urged that on a true construction sec. 28 of the Act conferred not only a right of first appeal against an original decree made by the Court in a petition for judicial separation under sec. 10 but also a right of second appeal against an appellate decree made by the Court in such petition and that since there were no limitations imposed by the section in regard to the grounds on which the right of second appeal could be exercised the right of second appeal conferred by the section was an unlimited right which extended not only to questions of law but also to questions of fact. It was then contended that a decree passed in a petition for judicial separation under sec. 10 is a decree within the meaning of sec. 2(2) of the Code and an appeal would therefore lie from it under sec. 96 of the Code and so also a second appeal under sec. 100. The third and last answer given was that in any event even if sec. 28 conferred only a right of first appeal against an original decree made by the Court in a petition for judicial separation under sec. 10 once the matter came to the appellate Court by way of first appeal the ordinary incidents of litigation attached to the decision of the appellate Court in such appeal and a second appeal therefore lay against the decision of the appellate Court under sec. 100 of the Code. It would be seen that the right of second appeal pleaded under the last two contentions was a limited right confined to questions of law as provided in sec. 100 of the Code while the right of second appeal pleaded under the first contention was an unfettered right which extended not only to questions of law but also to questions of fact and it was the first contention which was therefore principally pressed on behalf of the appellant and the second and the third contentions were urged only in the alternative to the first contention. The respondent of course denied the validity of all the three contentions urged on behalf of the appellant but in so far as the first contention was concerned the respondent submitted that even if sec. 28 were construed as conferring a right of second appeal such right was to be exercised under any law for the time being in force that is under the Code and the procedure for the filing of the appeal and the jurisdiction and powers of the Court in dealing with the appeal were governed by the Code end consequently the limitations contained in sec. 100 of the Code affected the right of second appeal. These were the rival contention which were urged before us and they raised a question of considerable importance regarding the construction of sec. 28.