KRISHNA KHETARPAL Vs. SATISH LAL

JUDGEMENT

(1.) TWO significant questions of law, mentioned hereafter, have been referred by S. S. Kang, J. for determination by a larger Bench and under orders of Hon'ble the Chief Justice have been placed before us, for the purpose. They are:

(2.) THE appellant in the present FAO is the wife and the respondent is her husband. The husband on 26th July, 1980, filed a petition for divorce under S. 13 of the Hindu Marriage Act, 1955 (for short, the Act) on various grounds. During the pendency of the petition on 29th May, 1984, a compromise deed was placed before the Court trying the cause. According to the terms of the compromise a decree for divorce was to be granted in favour of the husband it forming part of the decree-sheet. The learned Judge recorded the statements of the parties and relying on two decisions of this Court in Devinder Singh Talwar v. Loveleen Kaur, 1982 Marriage LJ 94, and Jagjit Singh v. Gunwant Kaur, 1978 Hindu LR 696, granted a decree of divorce in favour of the husband. The wife has appealed to this Court. At her instance, the second question has cropped up and the first question at the instance of the husband.

(3.) SO far as the first question is concerned, nothing much has been said to the maintainability of the appeal. Yet since the question has been referred we need examine it. It is well known that a right of appeal is a creature of the statute. It is a substantive right and not part of procedure. Section 28 (1) of the Act provides a right of appeal. It says: All decrees made by the court in any proceeding under the Act shall, subject to the provisions of sub-section (3) be appealable as decree of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. It is significant that all original decrees made by the Court under the Act are appealable. These decrees may be consent decrees or otherwise. Another significant feature in the Act is the provision of S. 13b whereunder divorce by mutual consent can be obtained. Decree of divorce by mutual consent is also appealable under S. 28 of the Act. So the scheme of the Act is not averse to passing of consent decrees (considerations under S. 23 apart) and the appeal against such decree is maintainable by either party as of right.