An appeal from a decree passed by an Assistant Judge under the Hindu Marriage Act lies to the High Court.

JUDGMENT - C.S. DHARMADHIKARI, J.:---This first appeal has been placed before the Division Bench in view of the reference made by Agarwal, J., vide order dated 18th April, 1983.

2. When the matter was placed for hearing before the Single Judge of this Court, learned Counsel appearing for the respondent-husband raised a preliminary objection to the maintainability of the appeal itself. In support of his contention he placed reliance upon the decision of Mohata, J., in (Bhaskar v. Mirabai)1, 1983 Mh.L.J. 115. Since the learned Single Judge (Agarwal, J.) found it difficult subscribe to the view expressed by Mohata, J., in the said judgment, the matter was referred to Division Bench.

3. The respondent-husband filed a petition under section 13 of the Hindu Marriage Act for a decree of divorce against the appellant-wife. It was contended by the respondent-husband that she had left the matrimonial home and went to reside with per parents without any rhyme or reason and thus has deserted him. The appellant wife resisted the petition. According to her she was always ready and willing to go and stay in the matrimonial home, but it was the husband who had refused to allow her to do so.

4. From the record it appears that initially this Hindu Marriage petition was filed before the learned Civil Judge (Senior Division), Satara. The said petition was thereafter assigned by the District Judge in exercise of his powers under section 16 of the Bombay Civil Courts Act, to learned Second Extra Assistant Judge, Satara and ultimately it came to be decided by him, vide his order, dated 30-4-1981. The learned Extra Assistant Judge, Satara granted the decree of divorce. Being aggrieved by this order the appellant wife filed the First Appeal before this Court.

5. Shri Kachare, learned Counsel appearing for the respondent-husband contended before us that the view taken by Mohata, J., in Bhaskar v. Meerabai is the only view possible in law and, therefore, the present appeal is not maintainable. On the other hand it is contended by Shri Divekar, learned Counsel appearing for the appellant that the view taken by Mohata, J., is wholly unsustainable. According to him, though the Division Bench decision of this Court in (Ambi Pundalik v. Pundalik)2, A.I.R. 1960 Bom. 521 was cited before Mohata, J. another decision of the Division Bench in (Gangadhar v. Manjula)3, A.I.R. 1960 Bom. 42 was not brought to the notice of Mohata, J. Relying upon the said judgment which is subsequently approved and followed by Mysore High Court in (Mallappa v. Mallaya)4, A.I.R. 1960 Mys. 392 and by the Orissa High Court in (Nrusing Charan Nayak v. Smt. Hamant Kumari Nayak)5, A.I.R. 1978 Orissa 163, it is contended by Shri Divekar that the view taken by Mohata, J., requires reconsideration.

6. He also contended that in a case filed under the Hindu Marriage Act no valuation is contemplated nor it is necessary. Therefore, Mohata, J., was obviously wrong in coming to the conclusion that forum of appeal should be decided on the basis of valuation. Shri Divekar further contended that Assistant Judge is part and parcel of the District Court and, therefore, it is held that the appeal lies to the District Judge against the order passed by the Assistant Judge also, then it will practically amount to filing an appeal to the same Court.

7. We find much substance in the contention raised by Shri Divekar. It is quite obvious that the decision of the Division Bench of this Court in Gangadhar v. Manjula was not brought to the notice of Mohata, J. The right of appeal is conferred by section 28 of the Hindu Marriage Act. Section 28, as it stood before the amendment was in the following terms :

"28. All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force; provided that there shall be n

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