RAJ RANI Vs. HARBANS SINGH CHHABRA

JUDGEMENT

(1.) This is an appeal by the wife under Section 28 of the Hindu Marriage Act, Act XXV of 1955, (hereinafter to be referred to as the Act) against an order of judicial separation passed Under Section 10 (1) of the Act. The petition was for decree for divorce under Section 13 of the Act. That prayer has been disallowed by the Court below. Hence the husband respondent has also filed a cross-objection. The order for judicial separation has been passed both on the grounds of unchastity of the wife and desertion of the husband by her. It may be Stated here that an adjournment was granted to the appellant in the Court below subject to the payment of a cost of Rs. 100. As she did not pay the cost the case was taken up for ex parte hearing and the order passed is an ex parte one.

(2.) When the matter was taken up for hearing by a learned single Judge of this Court a preliminary objection was taken on behalf of the respondent that as the memorandum of appeal was not accompanied by a copy of the decree which was prepared in the court below the appeal was not maintainable. In the opinion of the learned Single Judge the question raised was of importance as there was no Bench decision of this Court on the point. He therefore, referred the matter to a Division Bench. Unfortunately the Bench decision of this Court in Antalal Gope v. Smt. Sarbo Gopain, AIR 1962 Pat 489 was not brought to the notice of the learned Single Judge. In that case it has been held that the word "decree" in Section 13 or in any other Section of the Act is not used in the same sense as the word has been defined in the Code of Civil Procedure and that the word has been used in its dictionary sense that is to say, in the sense of a decision or an edict. The Bench has further held that a miscellaneous appeal is maintainable against an order passed under Section 13 or 10 of the Act and the Court fee payable on such an appeal is as contemplated under Article 11 of Schedule II of the Court Fees Act. Article 11 of Schedule II of the Court Fees Act provides for Court-fee on memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. The Bench, therefore, held in that case that an order under the Hindu Marriage Act though it was called a decree under the Act was appealable as an order. In view of the Bench decision there is no substance in the preliminary objection.

(3.) Our attention was drawn by learned counsel for the respondent to a recent decision of a learned single Judge of this Court in Bankim Chandra Roy v. Smt. Anjali Roy, 1971 Pat LJR 309 = (AIR 1972 Pat 80). In that decision the question has not been expressly decided. Further the aforesaid decision in Antalal Cope's case, AIR 1962 Pat 489 was also not cited before the learned Judge. The decision in Anta Lal Gope s case being a Bench decision is binding on us and as at present advised we do not find any reason to take a view different from one taken in it.