KUSUM LATA Vs. KAMPTA PRASAD

JUDGEMENT

(1.) JUDGEMENT This is a second appeal by a wife who had filed a petition under Sec. 10 of the Hindu Marriage Act (hereinafter referred to as the Act) for Judicial separation against her husband the respondent Kampta Prasad. The husband too had filed a petition under Sec. 9 of the Act against the appellant for the restitution of his conjugal rights to him before the appellants petition for judicial separation. Both the proceedings were consolidated and the evidence led by both the parties was common and the two cases were disposed of by a common judgment. The trial court dismissed both the petitions. In each of the two proceedings there was a separate issue on the question whether the respondent had treated the appellant with such a cruelty as to cause a reasonable apprehension in the mind of the appellant that it will be harmful or injurious for her to live with the respondent. The two separately framed issues on the same question were considered and decided as one common issue in the consolidated proceedings. While discussing this issue, the trial court took one allegation after another made by the wife against the husband, and held some allegations not to have been proved at all, and others, although, proved, as insufficient to amount to cruelty. The trial court also framed an issue in the husbands suit for the restitution of conjugal rights in the following terms :

(2.) IN dealing with tins issue, the trial Court dealt with only some of the instances of cruelty given by the wife and recorded the following conclusions :

(3.) THE appeal of the wife having been dismissed by the District Judge, she has come up in second appeal to this Court. A preliminary objection has been raised to the hearing of the second appeal on merits. It is that a proceeding under Sec. 10 of the Act of 1955 is commenced by a petition to the District Court, and not by means of the"plaint" required by O. IV R. 1 C.P.C., so that the proceeding cannot be termed"a suit". The objection is that a second appeal lies only where there is a decree by a lower appellate court, under Sec. 96 C.P.C., passed on an appeal from a decree of the court of original jurisdiction in a"suit." It is contended that the term decree is defined in Sec. 2(2) C.P.C. as an adjudication in a"suit", but it does not include decrees of matrimonial courts in proceedings under the Act of 1955.