KALAKOTA VARALAKSHMI Vs. KALAKOTA VEERADDI

JUDGEMENT

(1.) The question raised in this reference is whether appeals from decrees passed under Sections 9, 10, 11 and 13 of the Hindu Marriage Act (XXV of 1955) should be registered as civil miscellaneous appeals or first appeals.

(2.) The practice in this court was to register them as civil miscellaneous appeals till a decision was rendered by Umamaheswaram J. in S. R. No. 6720 of 1959". There, the learned Judge held that having regard to the language of these sections which describe the decision of the court as a decree, regular appeals lie from these adjudications and that it is not correct to register them as civil miscellaneous appeals.The lerned Judge drew a distinction between these sections and Sections 24 to 26 which relate to the granting of maintenance, expenses of proceeding and custody of children, the decisions under which are regarded as orders. In the opinion of the learned Judge, appeals from orders arising under the latter group of sections alone could be registered as civil miscellaneous appeals while those under Sections 9, 10, 11 and 13 should be registered as regular appeals. He thought that this consequence flows from a reading of Section 28 of the Hindu Marriage Act read with Section 96 of the Civil Procedure Code.

(3.) Section 9 deals with restitution of conjugal rights, Section 10 with judicial separation, Section 11 with void marriages and Section 13 with divorce. In all these matters the concerned civil court is empowered to grant decrees giving the reliefs asked for. But the question for consideration is whether the description of the adjudication as a decree is decisive of the matter, namely, whether appeals arising therefrom should be regarded as first appeals. The answer to this turns upon Section 90 C.P.C. which confers a right of appeal upon litigants against the decrees passed in the exercise of original jurisdiction. That section, in so far as it is material for our enquiry, reads: