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IN THE HIGH COURT OF BOMBAY
Nagpur
Mohta V. J
Bhaskar Pandurang Mahatme .... Appellant.
Versus
Meerabai Bhaskar Mahatme.... Respondent.
Second Appeal No. 289 of 1980 decided on 01–03-1982.
Advocate Appeared:
For appellant- V. M. Kulkarni. For respondent-Mrs. V. A. Naik.
HINDU MARRIAGE ACT - SECTION 28 - APPEAL - FIRST APPEAL AGAINST DECREE PASSED BY ASSISTANT JUDGE LIES TO DISTRICT JUDGE - BOMBAY CIVIL COURTS ACT, 1869, SECTION 16 - HINDU MARRIAGE ACT, 1955, SECTION 3(B) - NOTIFICATION DATED 1-9-1955 ISSUED UNDER SECTION 3(B) OF THE HINDU MARRIAGE ACT, 1955.
Fact of the Case:
Husband filed a petition for divorce under section 13(1)(ia), (ib) and (iii) of the Hindu Marriage Act, 1955. The trial court granted a decree for divorce under sections 13(l)(ia) and (iii). The wife appealed to the District Judge, who dismissed the petition. The husband appealed to the High Court, arguing that the first appeal should have been filed in the High Court and not before the District Judge.
Finding of the Court:
The High Court held that the first appeal against the decree passed by the Assistant Judge lies to the District Judge under section 16 of the Bombay Civil Courts Act, 1869, and not to the High Court. The court noted that proceedings under the Hindu Marriage Act, 1955 can be referred to the Assistant Judge by the District Judge under section 16 of the Bombay Civil Courts Act, 1869, and that appeals against the decisions of the Assistant Judge lie to the District Judge or to the High Court depending upon the valuation of suits and/or the nature of proceedings.
Issues: Whether the first appeal against the decree passed by the Assistant Judge lies to the District Judge or to the High Court.
Ratio Decidendi: The court held that the first appeal against the decree passed by the Assistant Judge lies to the District Judge under section 16 of the Bombay Civil Courts Act, 1869, and not to the High Court. The court noted that proceedings under the Hindu Marriage Act, 1955 can be referred to the Assistant Judge by the District Judge under section 16 of the Bombay Civil Courts Act, 1869, and that appeals against the decisions of the Assistant Judge lie to the District Judge or to the High Court depending upon the valuation of suits and/or the nature of proceedings.
Final Decision: The High Court dismissed the appeal.
2. The substance of the petition is as under: The marriage between the parties took place on 30–5-1974. It was consummated. The petitioner is a resident of village Wathoda Shukleshwar about 20 miles away from Amravati. The parties have a male child born on 15–10–1977. The wife suffers from mental disorder and, gets fits after sexual intercourse, as a result she becomes unconscious and remains in that condition for 2–3 days without taking any food or water. After the. medical treatment she recovers but the disorder is repeated after the intercourse. The petitioner is in the prime of his youth. Marriage without sex is an anathema. He is unable to have sex With his wife and is leading a miserable and unhappy married life. The petitioner cannot live with the wife under the circumstances. The wife's brother and maternal uncle frequently came to the village. They were informed about this unfortunate state of affairs. As a result, they took her to village Shendurjana Khurd, where her parents live. The wife also treated the petitioner with cruelty, abused him and behaved in a most indifferent manner. She never cared for the husband. Since last two years she was living with her parents and had deserted the husband.
3. The defence is as under: The allegations about mental disorder, cruelty and desertion are all false. The petitioner always insisted that she should sign a divorce-deed but the respondent refused and therefore she was beaten and constantly ill-treated. Ultimately, she was sent to her parents' place. Because of the beating and ill treatment, she got a shock and the fits that she got some times was the result of the ill-treatment. The respondent was willing to stay with the petitioner.
At the trial, the parties entered into witness box and examined certain witnesses. The petitioner examined two doctors (1) Dr. Omprakash Rathi (A. W. 1) and (2) Dr. Mrs. Bakula R. Shah (A. W. 3). The trial Court believed the evidence of those two doctors when they stated that the respondent was examined by them and they found her suffering from ailment of fits. Finding on desertion was recorded against the husband and on cruelty in his favour. Thus a decree of divorce under sections 13(1), (ia) and 13(l)(iii) was granted. Aggrieved by this decision by the Extra Assistant Judge, appeal was preferred in the Court of District Judge by the wife. The appellate Court was not at all impressed by the evidence of the husband as well as medical evidence and consequently dismissed the petition. It was also pleased to reject the preliminary objection regarding maintainability of appeal.
5. Shri Kulkarni, the learned counsel for the appellant, has reiterated the preliminary point that as the original case was decided by the Extra Assistant Judge, appeal cannot lie to the District Judge but lies to the High Court. In order to appreciate this point it is necessary to state the factual background relevant in this connection. Originally, the petition valued at Rs. 300 was filed before the Court of Civil Judge, Senior Division, Amravati. Even the issues were framed by that Court. Subsequently, at the stage of evidence the case was transferred by the District Judge to the Third Extra Assistant Judge. Obviously, this was done in terms of the powers vested in the District Judge by section 16 of the Bombay Civil Courts Act, 1869 (
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