The proper court fee payable on an application for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 is as per Schedule II, Article 1(b) of the Court Fees Act, 1870.

1. The present matter arises out of a report made by the Stamp Reporter demanding court-fee on the application out of which this appeal arises.

2. The relevant facts, shortly, are these: The appellant filed an application under sec. 13 of the Hindu Marriage Act, 1955 (Act 25 of 1955) for the dissolution of marriage. The petition was filed in the Court below on a court-fee of Re. 1-2-0 only. This application was dismissed. Thereupon, the appellant preferred the present appeal on a court-fee of one rupee only. The Stamp Reporter submitted the report stating that there was a deficit court-fee both in the Court below and in the High Court. The Stamp Reporter is of the view that Art, 17 (vi) of Schedule II of the Court-fees Act, 1870, applies to the facts of the present case and that the proper court-fee payable, therefore, is Rs. 22-8-0.

Accordingly, the Stamp Reporter has reported that there has been a deficit court-fee amounting to Rs. 21-6-0 on the application filed in the Court below and a further deficit amounting to Rs. 21-8-0 on the memorandum of appeal. The question of court-fee payable on the memorandum of appeal has been disposed of by the Taxing Officer of this Court, whose decision under Sec. 5 of the Court-fees Act has since become final.

3. The question of court-fee payable on the application under Sec.13 of the Hindu Marriage Act filed in the Court below has been contested and has, in the usual course, come up for orders before us.

4. Now, the relevant portion of Sec.13 of the Hindu Marriage Act, 1955 , runs as follows:

"13 (1). Any marriage soleminzed, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce ....

5. Sections 19 to 21 of the Act under the heading "Jurisdiction and Procedure" run as follows:

"19. Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together.

20. (1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by Jaw for the verification of plaints, and may, at the hearing, be referred to as evidence.

21. Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908".

6. The rules fiamed by the High Court have been published in. the Bihar Gazette, part III, page 577, dated the 7th August 1957. Rule 5 thereof lays down that the forms of petitions, decrees and orders etc., shall be as prescribed in the schedule to the Indian Divorce Act, 1869. Rule 10(2) says that the application for leave under S. 14 of the Hindu Marriage Act should be filed bearing the proper court-fee under the law and in accordance with the rules, and R. 23 says that the appeals under the Act shall be governed by the relevant rules in the General Rules and Circular Orders (Civil) or by the Courts rules. So, it appears that there is no definite rule laid down for such cases regarding court-fees. ,

7. In Smurthwaite V/s. Smurthwaite, ILR 58 All 259: (AIR 1935 All 791), the Allahabad High Court (Bennet J.) held:

"The: court-fee payable on a petition for divorce under the Indian and Colonial Divorce Jurisdiction Act of 1926 is Rs. 2. The court, in hearing such a petition, does not apply the Indian Divorce Ace, and, therefore, the court-fee applicable to that Act cannot be applied to a petition under the Indian and Colonial Divorce Jurisdiction Act of 1926."

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