NANDKISHORE Vs. PARWATIBAI

JUDGEMENT

(1.) COMMON question which the Taxing Officer has referred with reference to First Appeal No. 45 of 1964-Nandkishore v. Parwatibai, First Appeal No. 78 of 1964- Sobharam v Anarbai and First Appeal No. 90 of 1964-Shivnath v. Laxmibai, is as to the amount of court-fee needed for a memorandum of appeal against the decree arising out of a petition under the Hindu Marriage Act. On receipt of the reference counsel for the appellants as well as the Government Advocate on behalf of the State were heard.

(2.) IT is not disputed that the present appeals are not governed by the Court-fees (Madhya Pradesh Amendment) Act No. 3 of 1964 which came into force on 1-4-1964, Article 20-A whereof has made specific provision regarding petitions and memorandum of appeals in cases arising under the Hindu Marriage Act by requiring the same to be accompanied by fixed court-fee of Rs. 20. These appeals, no doubt, have been filed subsequent to the coming into force of the aforesaid Act. But in view of the decision of this Court in Arjuna Govinda v. Amrita Keshiba (1956 NLJ 382=AIR 1956 Nag. 281), as the petitions out of which these appeals arose had been filed before the aforesaid Act came into force that Act had no application to them and they will be governed by the law which was in force when the petitions under the Hindu Marriage Act had been initially filed.

(3.) IT is thus clear that the initiation of a proceeding under the Hindu Marriage Act either for judicial separation or for divorce etc. has to be by means of a petition. Can it be said that, for that reason, it cannot be called a suit? There is another reason suggested, apart from the one relating to the method of initiation of the proceeding. That reason is that by section 28 of the Hindu Marriage Act the decrees and orders made in these proceedings 'shall be enforced in like manner as decrees and orders of Court made in exercise of original civil jurisdiction are enforced'. Therefore, it is said, it is only by a legal fiction introduced by section 28 of the Hindu Marriage Act that the decrees and orders in proceeding under that Act acquire the character of enforceability and appealability which the decrees in ordinary civil suits possess. Had such proceedings been suits there would be no occasion to introduce any such fiction.