The main legal point established in the judgment is that for a petition for divorce under Sec. 13(1)(ib) of the Hindu Marriage Act, 1955 to be maintainable, there must be two years continuous desertion preceding the presentation of the petition. The court also clarified the interdependence of grounds for divorce based on cruelty and desertion.

JUDGMENT

RAVI NATH TILHARI, J. - Heard Sri Rahul, learned counsel, representing Smt.S.Pranathi, learned counsel for the Petitioner.

2. This Civil Revision Petition under Article 227 of Constitution of India has been filed to set aside the order dtd. 24/7/2023 passed by the Principal Senior Civil Judge, Tirupathi in an unnumbered H.M.O.P. No.(having C.F.R.No.3140 of 2023).

3. The Registry of this Court returned the C.R.P.(SR) with the following objection:-

" Please clarify and state as to how this CRPSR is entertainable filed under Article 227 of Constitution of India against the order dtd. 24/7/2023 passed in C.F.R.No.3140/2023 in unnumbered HMOP on this file of the Principal Senior Civil Judge, Tirupati.

And the said C.F.R. No.3146/2022 was filed and rejected by the lower Court which is a deemed decree against which CMA may lies."

4. Learned counsel for the petitioner has re-presented the CRP(SR) with the following endorsement:-

" A civil miscellaneous appeal under Sec. 28 of the Hindu Marriage Act, 1955 can only be preferred against a Decree made in accordance with the provisions of Hindu Marriage Act, 1955. The order dtd. 24/7/2023 by the learned PSCJ, Tirupati is passed at the stage of numbering of the application and there is no formal adjudication deciding the rights of the parties. Hence, such an order can neither be treated as "decree" as defined in Sec. 2(2) of the Civil Procedure Code, 1908, nor will it become a deemed decree.

The learned PSC, J Tirupati erroneously exercised power not vested with it and also refused to exercise the power vested it. It is a parent/flagrant error in procedure and is in violation of principles of natural justice. Hence a revision petition under Article 227 of the Constitution of India, 1950 as well as under Sec. 115 of the code of Civil Procedure, 1908 is maintainable.

If the above clarification is not satisfactory, kindly post for orders of the court. Hence objection complied."

5. The matter has been placed before the Court "for orders".

6. The objection to the office report, is on the ground that the impugned order dtd. 24/7/2023, is not decree. The Appeal under Sec. 28 of the Hindu Marriage Act, 1955 is not maintainable. Only petition under Article 227 of the Constitution of India is maintainable.

7. The order impugned is a judicial order passed by learned Principle Senior Civil Judge, Tirupathi. This may or may not be decree, in the sense of determination or adjudication of the grounds on which the petitioner sought divorce against the respondent. This will still be an order. Sec. 28 of Hindu Marriage Act provides for appeal against the decree and order both.

8. However, the alternative remedy is not an absolute bar to the entertainability of the petition under Article 227 of the Constitution of India. The jurisdiction under Article 227 is supervisory. The petition is being entertained.

9. The Registry of this Court shall allot a number to this petition.

10. Heard learned counsel for the petitioner on the merits of the matter.

11. The petitioner, the husband of the respondent, filed H.M.O.P.No.50 of 2018, in the Court of the Principal Senior Civil Judge, Tirupathi, seeking divorce on the grounds of cruelty under Sec. 13(1)(ia) and desertion under Sec. 13(1)(ib) of Hindu Marriage Act, 1955.

12. Learned Principal Senior Civil Judge framed points 1 and 2 for determination to the effect, whether the petitioner was subjected to cruelty and whether he was willfully deserted by the respondent. Findings were recorded that the essential ingredients of Ss. 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955 were absent. On point No.3, it was recorded that there was a chance for reunion. Consequently, the H.M.O.P. was dismissed on 18/10/2022.

13. The petitioner filed another H.M.O.P. (C.F.R.No.3140 of 2023) on 13/6/2023, on the same grounds under Ss. 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955.

14. The learned Principal Senior Civil Judge, Tirupathi, by the impugned order dtd. 24/7/202